Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund. (b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned: (i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee; (ii) The original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS Loan; (iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage; (iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation; (v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"; (vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment; (vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable; (viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and (ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 3 contracts
Samples: Trust Agreement (GSAA Home Equity Trust 2005-3), Trust Agreement (GSAA Home Equity Trust 2005-3), Trust Agreement (GSAA Home Equity Trust 2005-3)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of August 2002); (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Policy, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or except (iia) in the case of a Mortgage where a public recording office retains the original recorded Mortgage or states where, in the case where a Mortgage is lost after recordation in a public recording office, a copy opinion of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance counsel acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If , the Assignment of Mortgage Insurer and the Master Servicer, such recording is not required to be recorded, protect the Assignment of Mortgage shall be delivered Trustee's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereon, or if record solely as nominee for Residential Funding and its successors and assigns. If any such intervening assignment has not been returned from the applicable recording office or has been Assignment is lost or if such public recording office retains returned unrecorded to the original recorded assignments Depositor because of mortgageany defect therein, the Responsible Party Depositor shall prepare a substitute Assignment or cure such defect, as the case may be, and cause such Assignment to be recorded in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including (i) the related Mortgage Note and Mortgage, and (ii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, with a copy delivered to the Insurer, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Yield Maintenance Agreement (the delivery of which shall evidence that the fixed payment for the Yield Maintenance Agreement has been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agentexcept (a) in states where, or closing attorney to be a true and complete copy in an Opinion of the original recorded Mortgage will be promptly delivered Counsel acceptable to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (RASC Series 2005-Ks11 Trust), Pooling and Servicing Agreement (RASC Series 2006-Emx1 Trust), Pooling and Servicing Agreement (RASC Series 2006-Ks1 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Yield Maintenance Agreement (the delivery of which shall evidence that the fixed payment for the Yield Maintenance Agreement has been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R)System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R)System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agentexcept (a) in states where, or closing attorney to be a true and complete copy in an Opinion of the original recorded Mortgage will be promptly delivered Counsel acceptable to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R)System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (RAMP Series 2006-Rz1 Trust), Pooling and Servicing Agreement (RASC Series 2006-Emx2 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed (which may be by facsimile signature) in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of a Mortgage Note for endorsements, the endorsement may be contained on an allonge, unless the Trustee is advised in writing by the Responsible Party, that state law does not so allow;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party Party, shall deliver or cause to be delivered to the Custodian, Trustee a photocopy of such Mortgage, together with (iA) in the case of a delay caused by the public recording office, an officer's certification certificate of the Responsible Party certifying or evidence of certification on the face of such photocopy of such Mortgage or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Party; or (iiB) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered Loan endorsed in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee with evidence of recording thereonthereon or a certified true copy of such intervening assignments of Mortgage submitted for recording, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the Responsible Party Party, shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification certificate of the Responsible Party certifying or evidence of certification on the face of such photocopy of such intervening assignment or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage Mortgage or a copy of such intervening assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy appropriate public recording office to be a true and complete copy of the original recorded intervening assignment of mortgage Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or, in the event such original title policy is unavailable, a certified true copy of primary mortgage guaranty the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor Responsible Party shall deliver cause to be delivered to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee, additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File". On or prior to the Closing Date, the Responsible Party shall deliver to the Trustee, Assignments of Mortgage, in blank, for each Mortgage Loan. The Responsible Party shall cause the Assignments of Mortgage and complete recording information to be provided to the Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the complete recording information for a Mortgage, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Responsible Party and at no expense to the Trust Fund, the Trustee, the Servicer, or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Trustee and each Rating Agency have 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note or (ii) the Rating Agencies have each notified the Depositor in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any Offered Certificates to be downgraded or withdrawn; provided, however, that the Servicer shall not be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent the Servicer does not have prior knowledge of the act or omission that causes such loss. However, with respect to the Assignments of Mortgage referred to in clauses (i) and (ii) above, if foreclosure proceedings occur against a Mortgaged Property, the Depositor shall notify the Servicer and the Servicer shall record such Assignment of Mortgage at the expense of the Responsible Party (at no expense to the Servicer) as required pursuant to the Purchase Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of March 1, 2006, Morgan Stanley Capital I Inc. Trust 2006-NC2". In the event that any suxx Xxxixxxxxx of Mortgage is lost or returned unrecorded because of a defect therein, the Responsible Party shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee within 90 days following the Closing Date, and in the event that the Responsible Party does not cure such failure within 30 days of discovery or receipt of written notification of such failure from the Depositor, the related Mortgage Loan shall, upon the request of the Depositor, be repurchased by the Responsible Party at the price and in the manner specified in Section 2.03. The foregoing repurchase obligation shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the Trustee, prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "MORGAN STANLEY CAPITAL I INC. TRUST 2006-NC2" and Deutsche Bank Nationax Xxxxt Xxxxxxy 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, including without limitation, the representation and warranty set forth in paragraph (46) of Schedule III. The Trust's fiscal year is the calendar year.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans) pursuant to Section 2.01(a). The Trustee on behalf of the Trust is hereby directed to enter into the Interest Rate Swap Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc. Trust 2006-Nc2), Pooling and Servicing Agreement (Morgan Stanley Capital I Inc. Trust 2006-Nc2)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the each Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS Mortgage Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If personal endorsement and/or guaranty agreements executed in connection with any all non individual Mortgage LoanLoans (corporations, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagepartnerships, the Responsible Party shall deliver or cause to be delivered to the Custodiantrusts, a photocopy of such Mortgageestates, together with etc. (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageif any);
(iv) the related original Mortgage and evidence of its recording or, in certain limited circumstances, a certified copy of the mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified copies in either case evidencing recording; provided that the assignment may be in the form of a blanket assignment or assignments, a copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation agreements or extension agreementscertified copies thereof, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) if required to maintain the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion lien of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only mortgage or if otherwise required, or, if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording officerequired, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentagreement;
(vii) except with respect to the Countrywide Mortgage Loans, an original or copy of a title insurance policy or evidence of primary mortgage guaranty insurance or certificate of insurance, if applicabletitle;
(viii) to the extent applicable, an original power of attorney;
(ix) for each GreenPoint Mortgage Loan with respect to which the Mortgagor's name as it appears on the note does not match the borrower's name on the mortgage loan schedule, one of the following: the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitmentassumption agreement, or a certified copy thereof, in either case with evidence of recording thereon if required to maintain the lien of the mortgage or if otherwise required, or, if recordation is not so required, an original or copy of such assumption agreement; and
(ixx) any except with respect to Countrywide Mortgage Loans, a security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any. The Depositor shall deliver to the each Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing applicable Sale Agreement, the Responsible Party may forward to the applicable Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing applicable Sale Agreement. All such mortgage documents held by the Custodian Custodians as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Custodians Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. On the Closing Date, the Trustee shall provide a written request to each Responsible Party to submit the Assignments of Mortgage for recordation, at the Responsible Party's expense, pursuant to the applicable Sale Agreement. Each Custodian shall deliver the Assignment of Mortgages to be submitted for recordation to the applicable Responsible Party. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within the time period and in the manner specified in the applicable Sale Agreement, the Trustee shall take or cause to be taken such remedial actions under the Sale Agreement against the applicable Responsible Party as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the applicable Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the applicable Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the applicable Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAA Home Equity Trust 2004-7" and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the Mortgage Loans included in the Trust is (a) covered by the Home Ownership and Equity Protection Act of 1994, or (b) considered a "high cost home," "threshold," "predatory" or "covered" loan (excluding "covered home loans" as defined under clause (1) of the definition of "covered home loans" in the New Jersey Home Ownership Security Act of 2002) under applicable state, federal or local laws.
Appears in 2 contracts
Samples: Master Servicing and Trust Agreement (GS Mortgage GSAA Home Eq. Trust 2004-7), Master Servicing and Trust Agreement (GS Mortgage GSAA Home Eq. Trust 2004-7)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Yield Maintenance Agreement (the delivery of which shall evidence that the fixed payment for the Yield Maintenance Agreement has been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R)System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R)System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agentexcept (a) in states where, or closing attorney to be a true and complete copy in an Opinion of the original recorded Mortgage will be promptly delivered Counsel acceptable to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R)System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R)System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (RASC Series 2006-Emx4 Trust), Pooling and Servicing Agreement (RAMP Series 2006-Rz2 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to LaSalle with respect to the Custodian on behalf of LaSalle Mortgage Loans and to the Trustee with respect to the remaining Mortgage Loans, for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage NoteNote bearing all intervening endorsements, endorsed "Pay to the order of _____________, without recourse recourse" and signed (which may be by facsimile signature) in blank the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, unless the Trustee is advised in writing by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator applicable Originator (pursuant to the last endorseeapplicable Purchase Agreement) that state law does not so allow;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party Trustee or Custodian, as applicable, shall notify the applicable Originator to deliver or cause to be delivered to the Trustee or Custodian, as applicable, as required under the applicable Purchase Agreement, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying applicable Originator (delivered pursuant to the applicable Purchase Agreement) or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee or Custodian, as applicable, upon receipt thereof by the Responsible Partyapplicable Originator; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form and substance acceptable for recording blank (except for the insertion of the name of the assignee and recording informationwith respect to MERS Designated Mortgage Loans). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or a certified true copy of such intervening assignments of Mortgage submitted for recording, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the Responsible Party shall deliver Trustee or cause to be delivered to the Custodian, as applicable, shall notify the applicable Originator, to deliver, as required under the applicable Purchase Agreement, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying applicable Originator or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage Mortgage or a copy of such intervening assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy appropriate public recording office to be a true and complete copy of the original recorded intervening assignment of mortgage Mortgage will be promptly delivered to the Custodian Trustee or the Custodian, as applicable, upon receipt thereof by the Responsible Partyapplicable Originator; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or attorney's opinion of primary mortgage guaranty title and abstract of title, or, in the event such original title policy is unavailable, a certified true copy of the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor will use its reasonable efforts to assist the Trustee and the Servicers in enforcing the obligations of the Responsible Party under this Agreement, the obligations of Acoustic under the Acoustic Agreements, the obligations of Meritage under the Meritage Agreements and the obligations of Wilmington Finance under the Wilmington Finance Agreements. The Depositor shall deliver cause to be delivered to the Custodian Trustee or the Custodian, as applicable, the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 180 days from the Closing Date. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the applicable Servicer shall take all reasonable actions as are necessary at the expense of the applicable Originator to the extent permitted under the related Purchase Agreement and otherwise at the expense of the Depositor to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the applicable Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee or the Custodian, as applicable, additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee or the Custodian, as applicable, as to each Mortgage Loan shall constitute the "Custodial File". No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the applicable Servicer of the complete recording information for a Mortgage, the applicable Servicer shall promptly submit or cause to be submitted for recording, at the expense of the applicable Originator as required pursuant to the related Purchase Agreement and at no expense to the Trust Fund, the Trustee, the applicable Servicer, or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Trustee, the Custodian and each Rating Agency have 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan or (iii) if the Rating Agencies have each notified the Depositor in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any LIBOR Certificates to be downgraded or withdrawn; provided, however, that the Servicer shall not be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent such Servicer does not have prior knowledge of the act or omission that causes such loss. However, with respect to the Assignments of Mortgage referred to in clauses (i) and (ii) above, if foreclosure proceedings occur against a Mortgaged Property, the Depositor shall notify the applicable Servicer and such Servicer shall record such Assignment of Mortgage at the expense of the related Originator as required pursuant to the related Purchase Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of August 1, 2005, Morgan Stanley Home Equity Loan Trust 2005-3". In the event that any sxxx Xxsxxxxxxx of Mortgage is lost or returned unrecorded because of a defect therein, the Depositor shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded. If there is such a defect with respect to an Acoustic Mortgage Loan, a Meritage Mortgage Loan or a Wilmington Finance Mortgage Loan, the Trustee shall take such actions, with the Depositor's consent, to enforce the rights of the Trust as "Purchaser" under the Acoustic Agreements, the Meritage Agreements or the Wilmington Finance Agreements, as applicable. On or prior to the Closing Date, the Depositor shall deliver to the Trustee and the Custodian, as applicable, a copy of the Data Tape Information in an electronic, machine readable medium in a form mutually acceptable to the Trustee or the Custodian, as applicable. Within twenty (20) Business Days of the Closing Date, the Depositor shall deliver copies of the complete Mortgage Loan Schedule, the Purchase Agreements, the Acoustic Assignment Agreement, the Wilmington Finance Assignment Agreement and the Meritage Assignment Agreement to the Trustee, the Custodian and each Servicer, and the Trustee, the Custodian and each Servicer shall promptly acknowledge receipt thereof.
(c) 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") to be known, for convenience, as "MORGAN STANLEY HOME EQUITY LOAN TRUST 2005-3" and Deutsche Bank Nationxx Xxxsx Xxxxxny 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, including without limitation, the representations and warranties set forth in paragraph (ff) of Schedule IV to this Agreement.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans, the Acoustic Agreements, the Meritage Agreements, the Wilmington Finance Agreements and the Interest Rate Swap Agreement) pursuant to Section 2.01(a). The Trustee on behalf of the Trust is hereby directed to enter into the Interest Rate Swap Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Home Equity Loan Trust Series 2005-3), Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of the Cut-off Date).
(b) In connection with the transfer such assignment and assignment of each Mortgage Loanexcept as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(ii), (iii), (iv) and (v) which has been delivered to it by the Depositor.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by Trustee and the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (RAMP Series 2004-Rz3 Trust), Pooling and Servicing Agreement (RAMP Series 2004-Rz3 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, together with all rights of the Depositor under the Aames Assignment Agreement and the Aames Purchase Agreement (solely insofar as such agreements relate to the Aames Mortgage Loans) and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage NoteNote bearing all intervening endorsements, endorsed "Pay to the order of _____________, without recourse recourse" and signed (which may be by facsimile signature) in blank the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised in writing by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator applicable Originator (pursuant to the last endorseeapplicable Purchase Agreement) that state law so allows;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party Trustee shall notify the applicable Originator to deliver or cause to be delivered to the CustodianTrustee, as required under the applicable Purchase Agreement, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying applicable Originator (delivered pursuant to the applicable Purchase Agreement) or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Partyapplicable Originator; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form and substance acceptable for recording blank (except for the insertion of the name of the assignee and recording informationwith respect to MERS Designated Mortgage Loans). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the Responsible Party Trustee shall deliver or cause notify the applicable Originator, to be delivered to deliver, as required under the Custodianapplicable Purchase Agreement, a photocopy of such intervening assignment, together with (Ai) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying applicable Originator or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage Mortgage or a copy of such intervening assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy appropriate public recording office to be a true and complete copy of the original recorded intervening assignment of mortgage Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Partyapplicable Originator; or (Bii) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or attorney's opinion of primary mortgage guaranty title and abstract of title, or, in the event such original title policy is unavailable, a certified true copy of the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor will use its reasonable efforts to assist the Trustee and the Servicer in enforcing the obligations of each Responsible Party under this Agreement. The Depositor shall deliver cause to be delivered to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 180 days from the Closing Date. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the Servicer shall take all reasonable actions as are necessary at the expense of the applicable Originator to the extent permitted under the related Purchase Agreement and otherwise at the expense of the Depositor to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the applicable Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File". No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the applicable Servicer of the complete recording information for a Mortgage, the applicable Servicer shall promptly submit or cause to be submitted for recording, at the expense of the applicable Originator as required pursuant to the related Purchase Agreement and at no expense to the Trust Fund, the Trustee, the applicable Servicer, or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Trustee and each Rating Agency have 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan or (iii) if the Rating Agencies have each notified the Depositor in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any LIBOR Certificates to be downgraded or withdrawn; provided, however, that no Servicer shall be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent such Servicer has not received prior knowledge of the act or omission that causes such loss. However, if at any time that clause (i) or (ii) of the preceding sentence is no longer true or if foreclosure proceedings occur against a Mortgaged Property, the Depositor shall notify the applicable Servicer and the Servicer shall record such Assignment of Mortgage at the expense of the related Originator as required pursuant to the related Purchase Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of February 1, 2004, Morgan Stanley ABS Capital I Inc. Trust 2004-HE1". In the event that anx xxxx Xxxxxxxent of Mortgage is lost or returned unrecorded because of a defect therein, the Depositor shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded. On or prior to the Closing Date, the Depositor shall deliver to the Trustee a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Trustee.
(c) 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") to be known, for convenience, as "MORGAN STANLEY ABS CAPITAL I INC. TRUST 2004-HE1" and Deutsche Bank Natxxxxx Txxxx Xxmpany 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, including without limitation, the representations and warranties set forth in paragraph (aaa) of Schedule V, paragraph (50) of Schedule VI and paragraph (46) of Schedule VII to this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc Series 2004-He1), Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc Series 2004-He1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Hedge Agreement (the delivery of which shall evidence that the fixed payment for the Hedge Agreement have been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS® System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fund that is (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 High Cost Home Loan Law effective March 1, 2005.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered ’s interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for the Seller and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Depositor further agrees that it will cause, at the Depositor’s own expense, within 30 Business Days after the Closing Date, the MERS® System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master conveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 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 related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of the Seller's Warranties ’s right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A), (B), (C) and (D) granted by the Seller to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 [ ] Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor’s direction, the Seller and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee’s security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of the Custodian as to each Seller, the Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee’s name), (2) any change of location of the place of business or the chief executive office of the Seller or the Depositor, (3) any transfer of any interest of the Seller or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of the "Custodial FileSeller or the Depositor in any Uncertificated Regular Interests."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (SG Mortgage Securities, LLC), Pooling and Servicing Agreement (SG Mortgage Securities, LLC)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed in the name of the last endorsee by an authorized officer; except that for Mortgage Loans with loan numbers 10461625, 10468704, 10473758, 10484695 and 10467707, there is a lost note affidavit and a copy of the Mortgage Note. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised by the Depositor that state law so allows;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party (to the extent that it has not previously delivered the same to the Purchaser or the Trustee) shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreementsagreements (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party (to the extent it has not previously delivered the same to the Purchaser or the Trustee) shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original or duplicate lender's title policy and any riders thereto or, any one of primary mortgage guaranty insurance an original title binder, an original or certificate copy of insurancethe preliminary title report or an original or copy of the title commitment, if applicable;and if, copies then certified by the title company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor shall deliver to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may shall forward to the Custodian Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing this Agreement. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Trustee Assignments of Mortgages, in blank, for each Mortgage Loan. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the fully completed Assignments of Mortgages in recordable form, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Depositor, at no expense to the Trust Fund, the Trustee or the Responsible Party, in the appropriate public office for real property records, each Assignment referred to in Section 2.01(b)(v). Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be completed and submitted for recording with respect to any Mortgage Loan if the Trustee and each Rating Agency has received an opinion of counsel, satisfactory in form and substance to the Trustee and each Rating Agency, to the effect that the recordation of such Assignments in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned at the Depositor's expense to "Deutsche Bank National Trust Company as trustee under the Pooling and Servicing Agreement dated as of September 1, 2002, GSAMP Trust 2002-WMC1." In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Depositor, if the assignment is lost, or the Responsible Party, if there is a defect in the form of assignment, shall promptly prepare a substitute assignment to cure such defect and thereafter cause each such assignment to be duly recorded. On or prior to the Closing Date, the Depositor shall deliver to the Trustee a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee within the time period and in the manner specified in the Purchase Agreements, the Trustee shall notify the Depositor and the Depositor shall take or cause to be taken such remedial actions under the Purchase Agreements against the Responsible Party as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the Trustee prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAMP Trust 2002-WMC1" and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Gs Mortgage Sec Corp Mort Pass THR Cert Ser 2002-Wmc1), Pooling and Servicing Agreement (Gs Mortgage Sec Corp Mort Pass THR Cert Ser 2002-Wmc1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of March 2002); (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Certificate Policy, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section)
(I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original 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 or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement; and and (II) with respect to each Cooperative Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of Proprietary Lease to the originator of the Cooperative Loan with intervening assignments showing an unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the related Cooperative Stock pledged with respect to such Cooperative Loan, together with an undated stock power (or other similar instrument) executed in blank blank;
(iv) The original recognition agreement by the last endorseeCooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, including all intervening endorsements and any continuation statements, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security interest referenced in clause (vi) above showing a complete an unbroken chain of endorsement title from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blankTrustee, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, each with evidence of recording thereon thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the originator in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement referenced in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee;
(ix) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Cooperative Loan; and
(x) A duly completed UCC-1 financing statement showing Residential Funding as debtor, the Company as secured party and the Trustee as assignee and a certified true duly completed UCC-1 financing statement showing the Company as debtor and correct copy the Trustee as secured party, each in a form sufficient for filing, evidencing the interest of such debtors in the Cooperative Loans. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(I)(ii), (iii), (iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(I)(ii), (iii), (iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage sent for recordation. If in Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) In connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (I)(iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by Trustee and the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereonrecord solely as nominee for Residential Funding and its successors and assigns, and shall promptly cause to be filed the Form UCC-3 assignment and UCC-1 financing statement referred to in clause (II)(vii) and (x), respectively, of Section 2.01(b). If any Assignment, Form UCC-3 or Form UCC-1, as applicable, is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as applicable, or if any cure such intervening assignment has not been returned from defect, as the applicable recording office case may be, and cause such Assignment, Form UCC-3 or has been lost or if such public recording office retains the original Form UCC-1, as applicable, to be recorded assignments of mortgage, the Responsible Party in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, Form UCC-3 or Form UCC-1, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer. In connection with its servicing of Cooperative Loans, the Master Servicer will use its best efforts to file timely continuation statements with regard to each financing statement and assignment relating to Cooperative Loans as to which the related Cooperative Apartment is located outside of the State of New York. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(I)(ii), (iii), (iv) and (v) and (II)(vi) and (vii) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held conveyances by the Custodian Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 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 (i) with respect to each Cooperative Loan, the related Mortgage Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock Certificate and Cooperative Lease, (ii) with respect to each Mortgage Loan other than a Cooperative Loan, the related Mortgage Note and Mortgage, and (iii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, negotiable documents or chattel paper shall constitute be deemed to be "possession by the "Custodial Filesecured party," or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by (1) any change of name of Residential Funding, the Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before the Cut-Off Date). The foregoing sale, transfer, assignment and set over does not and is not intended to result in a creation of an assumption by the Trustee of any obligation of the Depositor or any other Person in connection with the Mortgage Loans or any agreement or instrument relating thereto, except as specifically set forth herein.
(b) In connection with the such transfer and assignment of each Mortgage Loanassignment, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee Trustee, for the benefit of the Certificateholders Certificateholders, the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile signature in the following form: "Pay to the order of The Bank of New York, as Trustee, without recourse in blank by the last endorsee, including recourse," with all necessary intervening endorsements showing a complete chain of endorsement from the originator to the last endorseeTrustee (each such endorsement being sufficient to transfer all right, title and interest of the party so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note);
(ii) The original Assignment of Mortgage in blankexcept as provided below, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original recorded Mortgage with evidence of a recording thereon on thereon, or prior to the Closing Date because of a delay caused by the public recording office where if any such Mortgage has not been delivered for recordation returned from the applicable recording office or because such Mortgage has been lost lost, or because if such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title companyDepositor as being a true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, escrow agenta duly executed Assignment of Mortgage to "The Bank of New York, as trustee for the holders of the Bank of America Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2000-1" (which may be included in a blanket assignment or closing attorney to be assignments), together with, except as provided below, originals of all interim recorded assignments of such mortgage or a copy of such interim assignment certified by the Depositor as being a true and complete copy of the original recorded intervening assignments of Mortgage will (each such assignment, when duly and validly completed, to be promptly delivered in recordable form and sufficient to effect the assignment of and transfer to the Custodian upon receipt thereof by assignee thereof, under the Responsible PartyMortgage to which the assignment relates); or (ii) in provided that, if the case of a related Mortgage where a public recording office retains has not been returned from the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a applicable public recording office, a copy such Assignment of such Mortgage certified by such public recording office or may exclude the information to be provided by the title insurance company that issued recording office; and provided, further, if the title policy related Mortgage has been recorded in the name of Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be a true prepared or delivered and complete copy instead, the Servicer shall take all actions as are necessary to cause the Trust to be shown as the owner of the original recorded Mortgagerelated Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or extension agreements, if any, with evidence of recording thereon, or certified true copies of any document sent for recordationif any;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form or duplicate original mortgagee title insurance policy and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"all riders thereto;
(vi) originals or certified true copies the original of documents sent any guarantee executed in connection with the Mortgage Note;
(vii) for recordation of all intervening assignments each Mortgage Loan which is secured by a residential long-term lease, a copy of the lease with evidence of recording indicated thereon, or, if the lease is in the process of being recorded, a photocopy of the lease, certified by an officer of the respective prior owner of such Mortgage Loan or by the applicable title insurance company, closing/settlement/escrow agent or company or closing attorney to be a true and correct copy of the lease transmitted for recordation;
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(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; 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). provided, however, that on the Closing Date, with respect to item (iii), the Depositor has delivered to the Trustee a copy of such Assignment of Mortgage in blank and has caused the Servicer to retain the completed Assignment of Mortgage for recording as described below, unless such Mortgage has been recorded in the name of MERS or its designee. In addition, if the Depositor is unable to deliver or cause the delivery of any original Mortgage Note due to the loss of such original Mortgage Note, the Depositor may deliver a copy of such Mortgage Note, together with a lost note affidavit, and shall thereby be deemed to have satisfied the document delivery requirements of this Section 2.01(b). If in connection with any Mortgage Loans, the Depositor cannot deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all assumption, modification, consolidation or extension agreements, if any, or if any (D) the lender's title policy (together with all riders thereto) satisfying the requirements of clause (ii), (iii), (iv) or (v) above, respectively, concurrently with the execution and delivery hereof because such intervening assignment has document or documents have not been returned from the applicable recording office or has been lost or if such public recording office retains in the original recorded assignments case of mortgageclause (ii), (iii) or (iv) above, or because the title policy has not been delivered to either the Servicer or the Depositor by the applicable title insurer in the case of clause (v) above, the Responsible Party Depositor shall promptly deliver or cause to be delivered to the CustodianTrustee or the Custodian on behalf of the Trustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording officeclause (ii), an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; (iii) or (Biv) in the case of an intervening assignment where a public recording office retains the original recorded intervening above, such Mortgage, such interim assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension agreement, as the case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office, but in no event shall any such delivery of any such documents or instruments be made later than one year following the Closing Date, unless, in the case of clause (ii), (iii) or (iv) above, there has been a continuing delay at the applicable recording office or, in the case of clause (v), there has been a continuing delay at the applicable insurer and the Depositor has delivered the Officer's Certificate to such effect to the Trustee. The Depositor shall forward or cause to be forwarded to the Trustee (1) from time to time additional original documents evidencing an assumption or modification of a Mortgage Loan approved and (2) any other documents required to be delivered by the Responsible PartyDepositor or the Servicer to the Trustee or the Custodian on the Trustee's behalf. In the event that the original Mortgage is not delivered and in connection with the payment in full of the related Mortgage Loan the public recording office requires the presentation of a "lost instruments affidavit and indemnity" or any equivalent document, because only a copy of the Mortgage can be delivered with the instrument of satisfaction or reconveyance, the Servicer shall prepare, execute and deliver or cause to be prepared, executed and delivered, on behalf of the Trust, such a document to the public recording office. As promptly as practicable subsequent to such transfer and assignment, and in any event, within 30 days thereafter, the Servicer shall (except for any Mortgage which has been recorded in the name of MERS or its designee) (I) cause each Assignment of Mortgage to be in proper form for recording in the appropriate public office for real property records within 30 days of the Closing Date and (II) at the Depositor's expense, cause to be 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 Assignment of a 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 30 days after the receipt thereof and, no recording of an Assignment of Mortgage will be required if the Depositor furnishes to the Trustee an unqualified Opinion of Counsel reasonably acceptable to the Trustee to the effect that recordation of such assignment is not necessary under applicable state law to preserve the Trustee's interest in the related Mortgage Loan against the claim of any subsequent transferee of such Mortgage Loan or any successor to, or creditor of, the Depositor or the originator of such Mortgage Loan. In the case of Mortgage Loans that have been prepaid in full as of the Closing Date, the Depositor, in accordance with lieu of delivering the terms of above documents to the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by Trustee, or the Custodian as on the Trustee's behalf, will cause the Servicer to each Mortgage Loan shall constitute deposit in the "Servicer Custodial FileAccount the portion of such payment that is required to be deposited in the Servicer Custodial Account pursuant to Section 3.08."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Bank of America Mort Sec Inc Mort Pass THR Cert Ser 2000 1), Pooling and Servicing Agreement (Bank of America Mort Sec Inc Mort Pass THR Cert Ser 2000 1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on each Mortgage Loan on or before the Due Date in the month of the Cut-off Date). The Mortgage Loans that from time to time constitute part of the Trust FundFund shall be divided into two separate sub-trusts, one for Loan Group I and one for Loan Group II.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loan, this Agreement the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Policies, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Person stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or if the recording office retains the original or the original has been lost or destroyed a copy of the Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) Systems, an original Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or if the recording office retains the original or the original has been lost or destroyed a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator thereof to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or if the recording office retains the original or the original has been lost or destroyed a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan or if the recording office retains the original or the original has been lost or destroyed a copy of each modification, assumption agreement or preferred loan agreement with evidence of recording thereon, if such documents are required to be recorded.
(c) The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders and the Insurer until such time as is set forth below in the next sentence. Within ten Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(ii), (iii), (iv) and (v) which has been delivered to it by the Depositor.
(d) Notwithstanding the provisions of Section 2.01(c), in the event that in connection with any Mortgage Loan the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon or a certified true concurrently with the execution and correct copy delivery of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date this Agreement solely because of a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement, as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the appropriate public office for real property records the Assignment referred to in clause (iii) of Section 2.01(b), except (a) in states where, in the opinion of counsel acceptable to the Trustee, the Insurer and the Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan against the claim of any subsequent transferee or any successor to or creditor of the Depositor or the originator of such Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successors and assigns. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, 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 and the Insurer by including (i) or deleting, in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(e) It is intended that the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held conveyances by the Custodian Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be and be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 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 with respect to each Mortgage Loan, the Mortgage Notes, the Mortgages, (B) any related insurance policies and all other documents in the related Mortgage Files, (C) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (D) any and all general intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, negotiable documents, goods, letters of credit, advices of credit, certificated securities or chattel paper shall be deemed to be "possession by the secured party," or possession by a purchaser for purposes of perfecting the security interest pursuant to the Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Section 9-305, and 9-115 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, securities intermediaries, bailees or agents of, or persons holding for (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officer's Certificate of the Depositor, with a copy delivered to the Insurer, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by (1) any change of name of Residential Funding, the Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan.
(f) The Depositor agrees to deliver to the Trustee an Officer's Certificate listing any Mortgage Loan registered on the MERS(R) System for which the assignment to the Trustee on the MERS(R) System as contemplated by Section 2.01(d) was rejected, defective or otherwise not accomplished. The Depositor shall constitute deliver such Officer's Certificate within 45 Business Days after the "Custodial FileClosing Date and every 30 days thereafter until no such exceptions exist. If any Mortgage Loan or Mortgage Loans continue to be listed as exceptions, the Depositor shall use its commercially reasonable efforts to cure the exception."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Securities Corp), Pooling and Servicing Agreement (Residential Asset Securities Corp)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Hedge Agreements (the delivery of which shall evidence that the fixed payment for the Hedge Agreements have been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording indicated thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date because Trustee with evidence of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage indicated thereon or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy assignment with evidence of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageindicated thereon;
(iv) The original recorded assignment or assignments of the originals Mortgage showing an unbroken chain of all assumptiontitle from the originator to the Person assigning it to the Trustee (or to MERS, modification, consolidation or extension agreements, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recording thereonrecordation noted thereon or attached thereto, or certified true copies a copy of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law such assignment or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any any, relating to such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage Loan, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such intervening assignment documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of mortgage certified by all present and future Certificateholders until such time as is set forth in the escrow agent, or closing attorney or by next sentence. Within thirty Business Days following the title insurance company that issued earlier of (i) the title policy to be a true and complete copy receipt of the original recorded intervening assignment of mortgage will be promptly delivered to all of the Custodian upon receipt documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Responsible Party; Trustee to deliver those documents with respect to any or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy all of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian as to each Mortgage Loan shall constitute or Custodians that are the "Custodial Fileduly appointed agent or agents of the Trustee."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (RASC Series 2005-Ks2 Trust), Pooling and Servicing Agreement (RASC Series 2005-Ks1 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of October 2004); (ii) the Reserve Fund Deposit; (iii) the Yield Maintenance Agreement Purchase Price and (iv) all proceeds of the foregoing. In addition, on the Closing Date, the Trustee is hereby directed to enter into the Yield Maintenance Agreements on behalf of the Trust FundFund with the Yield Maintenance Agreement Provider. The Depositor, the Master Servicer and the Trustee 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 or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, except as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian that is the duly appointed agent of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the appropriate public office for real property records the Assignment referred to in clause(iii) of Section 2.01(b), except (a) in states where, in the Opinion of Counsel acceptable to the Trustee and the Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iiii), (iv) and (v) that may be delivered as a copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, 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 a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) Residential Funding hereby assigns to the Master Seller's Warranties Trustee its security interest in and Servicing to any Pledged Assets, its right to receive amounts due or to become due in respect of any Pledged Assets pursuant to the related Subservicing Agreement. All With respect to any Pledged Asset Loan, Residential Funding shall cause to be filed in the appropriate recording office a UCC-3 statement giving notice of the assignment of the related security interest to the Trust Fund and shall thereafter cause the timely filing of all necessary continuation statements with regard to such mortgage documents held financing statements.
(e) It is intended that the conveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Yield Maintenance Agreement Purchase Price for the benefit of the Holders of the Class A Certificates and Class M Certificates. It is intended that the conveyance by the Depositor to the Trustee of the Yield Maintenance Agreement Purchase Price be construed as partial consideration for the Class A Certificates and Class M Certificates. Further, it is not intended that any such conveyance be deemed to be 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 or the Yield Maintenance Agreements are held to be property of the Depositor or of Residential Funding, 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 conveyances provided for in this Section 2.01 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) (i) the Mortgage Loans, including (a) the related Mortgage Note and Mortgage, and (b) any insurance policies and all other documents in the related Mortgage File and (ii) the Yield Maintenance Agreement Purchase Price, (B) all amounts payable pursuant to the Mortgage Loans or the Yield Maintenance Agreements in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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.
(f) The Depositor agrees that the sale of each Pledged Asset Loan pursuant to this Agreement will also constitute the assignment, sale, setting-over, transfer and conveyance to the Trustee, without recourse (but subject to the Depositor's covenants, representations and warranties specifically provided herein), of all of the Depositor's obligations and all of the Depositor's right, title and interest in, to and under, whether now existing or hereafter acquired as owner of the Mortgage Loan with respect to all money, securities, security entitlements, accounts, general intangibles, instruments, documents, certificates of deposit, commodities contracts, and other investment property and other property of whatever kind or description consisting of, arising from or related to (i) the Assigned Contracts, (ii) all rights, powers and remedies of the Depositor as owner of such Mortgage Loan under or in connection with the Assigned Contracts, whether arising under the terms of such Assigned Contracts, by statute, at law or in equity, or otherwise arising out of any default by the Mortgagor under or in connection with the Assigned Contracts, including all rights to exercise any election or option or to make any decision or determination or to give or receive any notice, consent, approval or waiver thereunder, (iii) all security interests in and lien of the Depositor as owner of such Mortgage Loan in the Pledged Amounts and all money, securities, security entitlements, accounts, general intangibles, instruments, documents, certificates of deposit, commodities contracts, and other investment property and other property of whatever kind or description and all cash and non-cash proceeds of the sale, exchange, or redemption of, and all stock or conversion rights, rights to subscribe, liquidation dividends or preferences, stock dividends, rights to interest, dividends, earnings, income, rents, issues, profits, interest payments or other distributions of cash or other property that is credited to the Custodial Account, (iv) all documents, books and records concerning the foregoing (including all computer programs, tapes, disks and related items containing any such information) and (v) all insurance proceeds (including proceeds from the Federal Deposit Insurance Corporation or the Securities Investor Protection Corporation or any other insurance company) of any of the foregoing or replacements thereof or substitutions therefor, proceeds of proceeds and the conversion, voluntary or involuntary, of any thereof. The foregoing transfer, sale, assignment and conveyance does not constitute and is not intended to result in the creation, or an assumption by the Trustee, of any obligation of the Depositor, or any other person in connection with the Pledged Assets or under any agreement or instrument relating thereto, including any obligation to the Mortgagor, other than as owner of the Mortgage Loan. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Without limiting the generality of the foregoing, the Depositor shall constitute prepare and deliver to the "Custodial FileTrustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by (1) any change of name of Residential Funding, the Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (RAAC Series 2004-Sp3)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of May 2002); (ii) the Basis Risk Shortfall Reserve Fund Deposit and the Mortgage Insurance Premium Taxes Reserve Fund Deposit; and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Certificate Guaranty Insurance Policy, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement; and The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or except (iia) in the case of a Mortgage where a public recording office retains the original recorded Mortgage or states where, in the case where a Mortgage is lost after recordation in a public recording office, a copy opinion of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance counsel acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If , the Assignment of Mortgage Certificate Insurer and the Master Servicer, such recording is not required to be recorded, protect the Assignment of Mortgage shall be delivered Trustee's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereonrecord solely as nominee for Residential Funding and its successors and assigns. If any Assignment as applicable, or if any such intervening assignment has not been returned from the applicable recording office or has been is lost or if such public recording office retains returned unrecorded to the original recorded assignments Depositor because of mortgageany defect therein, the Responsible Party Depositor shall prepare a substitute Assignment or cure such defect, as the case may be, and cause such Assignment to be recorded in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note and Mortgage, and (iii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, with a copy delivered to the Certificate Insurer, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Securities Corp), Pooling and Servicing Agreement (Residential Asset Securities Corp)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.01% of the Mortgage Notes for which there is a lost note affidavit and the copy of the Mortgage Note, endorsed without recourse in blank by the last endorsee, including ) bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed in the name of the last endorsee. To the extent that there is no room on the face of any Mortgage Note for an endorsement, the endorsement may be contained on an allonge, unless state law does not so allow and the Trustee is advised by the Responsible Party that state law does not so allow. If the Mortgage Loan was acquired by the Responsible Party in a merger, the endorsement must be by "[last endorsee], successor by merger to [name of predecessor]". If the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, the endorsement must be by "[last endorsee], formerly known as [previous name]";
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (iA) in the case of a delay caused by the public recording office, an officer's certification certificate of the Responsible Party certifying Party, or evidence of certification on the face of such photocopy of such Mortgage, or certified by the title company, escrow agent, or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Party; or (iiB) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreementsagreements (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) except with respect to each MERS Designated Mortgage Loan, the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments Assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments Assignments of mortgageMortgage, the Responsible Party (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification certificate of the Responsible Party certifying Party, or evidence of certification on the face of such photocopy of such intervening assignment, or certified by the title company, escrow agent, or closing attorney stating that such intervening assignment Assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment Assignment of mortgage Mortgage or a copy of such intervening assignment Assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible Party; , or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original duplicate lender's title policy insurance and any riders thereto or, any one of an original title binder, an original or other evidence of title such as a copy of the preliminary title report or an original or copy of the title commitment, or a copy thereofand if, copies then certified by the title company; and
(ixviii) any a security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided); The Depositor shall use reasonable efforts to assist the Trustee and the Servicer in enforcing the obligations of the Purchaser under the Responsible Party Agreements. Each Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a lost note affidavit as of the Closing Date. In the event one or more lost note affidavits are provided to cover multiple missing Mortgage Notes on the Closing Date, the Depositor shall use reasonable efforts to cause the Responsible Party to deliver to the Trustee the applicable individual lost note affidavits within ten (10) Business Days of the Closing Date. If the Responsible Party fails to deliver the required individual lost note affidavits within the specified period of time, the Trustee shall notify the Responsible Party to take such remedial actions, including, without limitation, the repurchase by the Responsible Party of such Mortgage Loan within 60 days of the Closing Date. The Depositor shall use reasonable efforts to cause the Purchaser and the Responsible Party to deliver to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 150 days from the Closing Date. From time If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to time, pursuant to the Master Seller's Warranties be prepared or delivered and Servicing Agreementinstead, the Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trust 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 Depositor shall use reasonable efforts to cause the Purchaser and Responsible Party may Party, as applicable, to forward to the Custodian additional original documents, Trustee additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, Party in accordance with the terms of the Master Seller's Warranties and Servicing AgreementResponsible Party Agreements. All such mortgage documents Mortgage Loan Documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall use reasonable efforts to cause the Purchaser or Responsible Party to deliver to the Trustee Assignments of Mortgages, in blank, for each applicable Mortgage Loan (except with respect to each MERS Designated Mortgage Loan). The Depositor shall use reasonable efforts to cause the Purchaser or Responsible Party to cause the Assignments of Mortgage with completed recording information to be provided to the Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the fully completed Assignments of Mortgages in recordable form, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Responsible Party pursuant to the Purchase Agreement, at no expense to the Trust Fund, the Trustee or the Depositor in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note or (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan. If the Assignment of Mortgage is to be recorded, the Depositor shall use reasonable efforts to cause the Purchaser to assign the Mortgage at the Purchaser's expense to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of September 1, 2005, FFMLT Trust 2005-FF8." In the event that any such assignment is lost or returned unrecorded because of a defect therein with respect to any Mortgage Loan, and such defect is not cured, the Trustee shall cause the Purchaser to repurchase such Mortgage Loan pursuant to the Responsible Party Agreements. On or prior to the Closing Date, the Depositor shall deliver to the Trustee and the Servicer a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor, the Servicer and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Trustee and the Servicer. In the event, with respect to any Mortgage Loan, that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee within 180 days of the applicable Original Purchase Date as specified in the Purchase Agreement, the Trustee shall notify the Depositor and the Depositor shall take or cause to be taken such remedial actions under the Purchase Agreement as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the Responsible Party confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the Trustee prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "FFMLT Trust 2005-FF8" and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans, the Interest Rate Swap Agreement and the Responsible Party Agreements) pursuant to Section 2.01(a). The parties hereby acknowledge and agree that the execution and delivery of the Interest Rate Swap Agreement by the Trustee on behalf of the Trust was authorized and is hereby ratified and confirmed.
(e) It is agreed and understood by the Depositor and the Trustee that it is the policy and intention of the Trust to acquire only Mortgage Loans meeting the requirements set forth in this Agreement, including without limitation, including the requirement that no Mortgage Loan be a High Cost or Covered Loan, as applicable, and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 be governed by the Georgia Fair Lending Act.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (FFMLT Trust 2005-Ff8), Pooling and Servicing Agreement (FFMLT Trust 2005-Ff8)
Conveyance of Mortgage Loans. (a) The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby sellsassign, transferstransfer, assignssell, sets set over and otherwise conveys convey to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule (exclusive of any prepayment fees and late payment charges received thereon) and all other assets included or to be included in the Trust Fund.
Fund for the benefit of the Certificateholders. Such assignment includes all principal and interest received by the Servicer on or with respect to the Mortgage Loans (b) other than payment of principal and interest due on or before the Cut-off Date). In connection with the such transfer and assignment assignment, the Depositor has caused the Sponsor with respect to each Mortgage Loan, to deliver to, and deposit to or at the direction of the Trustee, as described in the Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with instruments:
(a) With respect to each Mortgage Loan so assignedLoan, other than a Cooperative Loan:
(i) the original Mortgage Note, Note endorsed without recourse to the order of the Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee or in blank by or, with respect to any Mortgage Loan as to which the last endorseeoriginal Mortgage Note has been lost or destroyed and has not been replaced, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorseeLost Note Affidavit;
(ii) The original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on 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 Sponsor or prior to the Closing Date because of a delay caused by the public recording office where in which such original Mortgage has been delivered 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, or, if the original of any such intervening assignment has not yet been returned from the public recording office, a copy of such original intervening assignment certified by the Sponsor or the public recording office in which such original intervening assignment has been recorded;
(v) the original policy of title insurance (or a preliminary title report commitment for title insurance, if the policy is being held by the title insurance company pending recordation of the Mortgage); and
(vi) the original or because such a true and correct copy of any assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loan.
(b) With respect to each Mortgage Loan that is a Cooperative Loan (as indicated on the Mortgage Loan Schedule):
(i) the original Mortgage Note endorsed without recourse to the order of the Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or because destroyed and has not been replaced, a Lost Note Affidavit;
(ii) the original duly executed assignment of Security Agreement to the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or certified copy thereof) with respect to the Security Agreement, and any required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with respect to the security agreement, indicating the Trustee as the assignee of the secured party;
(v) the stock certificate representing the Cooperative Assets allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original intervening assignments, including warehousing assignments, if any, showing, to the extent available, an unbroken chain of the related Mortgage Loan to the Trustee, together with a copy of the related Form UCC-3 with evidence of filing thereon; and
(ix) the original or a true and correct copy of any assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loan. Within 30 days after the Closing Date, the Depositor shall complete or cause to be completed the Assignments of Mortgage in the name of “Deutsche Bank National Trust Company, as trustee under the Agreement relating to American Home Mortgage Assets LLC, Mortgaged-Backed Pass-Through Certificates, Series 2006-5” (or shall prepare or cause to be prepared new forms of Assignment of Mortgage so completed in the name of the Trustee) for each Mortgage Property in a state, if any, which is specifically excluded from the Opinion of Counsel delivered by the Depositor to the Trustee and the Custodian, each such assignment shall be recorded in the appropriate public office for real property records, and returned to the Custodian, at no expense to the Trustee or the Custodian. The Sponsor 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 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 Custodian as agent for the Trustee pursuant to clause (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 as agent for the Trustee pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement, the 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 Trustee, the Custodian 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, each assignment shall be submitted for recording by the Sponsor in the manner described above, at no expense to the Issuing Entity, the Custodian or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates evidencing at least 25% of the Voting Rights, (ii) the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Sponsor, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Sponsor is not the Master Servicer and with respect to any one assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains the original recorded MortgageMortgage after it has been recorded, the Responsible Party Sponsor shall deliver or cause be deemed to be delivered have satisfied its obligations hereunder upon delivery to the Custodian, a photocopy Custodian as agent for the Trustee of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such 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 as agent for the Trustee because of any defect therein, the Sponsor, as the case may be, is required, as described in the Mortgage Loan Purchase Agreement, to prepare a substitute Assignment or cure such defect, as the case may be, and the Sponsor, as applicable, shall cause such Assignment to be recorded intervening assignment;
in accordance with this section. 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 (viior deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
code in the field which identifies the specific Trustee and (viiib) the original lender's title policy insurance or other evidence of title such as a copy code in the field “Pool Field” which identifies the series of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed Certificates issued in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver further agrees that it will not, and will not permit the Servicer to alter the Custodian the applicable recorded document promptly upon receipt from the respective recording office but codes referenced in no event later than 240 days from the Closing Date. From time this paragraph with respect to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to the Cooperative Loans, the Depositor will, promptly after the Closing Date, cause the related financing statements (if not yet filed) and an assignment thereof from the Depositor to the Trustee to be filed in the appropriate offices. Except as may otherwise expressly be provided herein, none of the Depositor, the Custodian, the Master Seller's Warranties Servicer, or the Trustee shall (and Servicing Agreementthe 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. All 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 mortgage 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 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 Custodian as agent for the Trustee or any other agent of the Trustee of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to each 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 shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loan shall constitute Loans and the "Custodial FileREMIC 1 Regular Interests, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Agreement."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-5), Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-5)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans on or before the Cut-off Date).
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, except as set forth in Section 2.01(c) below, the Depositor has delivered Company does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) (I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Mortgage 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;
(iii) An original Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment certified by the public recording office in which such assignment has been recorded;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator thereof to the Person assigning it to the Trustee or a copy of such assignment or assignments of the Mortgage certified by the public recording office in which such assignment or assignments have been recorded; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan or a copy of each modification, assumption agreement or preferred loan agreement certified by the public recording office in which such document has been recorded. and (II) with respect to each Cooperative Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of Proprietary Lease to the originator of the Cooperative Loan with intervening assignments showing an unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the related Cooperative Stock pledged with respect to such Cooperative Loan, together with an undated stock power (or other similar instrument) executed in blank blank;
(iv) The original recognition agreement by the last endorseeCooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, including all intervening endorsements and any continuation statements, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security interest referenced in clause (vi) above showing a complete an unbroken chain of endorsement title from the originator to the last endorseeTrustee, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(iiviii) An executed assignment of the interest of the originator in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement referenced in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee;
(ix) The original Assignment of each modification, assumption agreement or preferred loan agreement, if any, relating to such Cooperative Loan; and
(x) An executed UCC-1 financing statement showing the Master Servicer as debtor, the Company as secured party and the Trustee as assignee and an executed UCC-1 financing statement showing the Company as debtor and the Trustee as secured party, each in a form sufficient for filing, evidencing the interest of such debtors in the Cooperative Loans.
(c) The Company may, in lieu of delivering the documents set forth in Section 2.01(b)(I)(iv) and (v) and Section 2.01(b)(II)(ii), (iv), (vii), (ix) and (x) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth below. Within ten Business Days following the earlier of (i) the receipt of the original of each of the documents or instruments set forth in Section 2.01(b)(I)(iv) and (v) and Section 2.01(b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by such Section) for any Mortgage in blank, unless Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loan Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(I)(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) which has been delivered to it by the Company. Every six months after the Closing Date, for so long as the Master Servicer is a MERS Loan;
holding documents pursuant to this Section 2.01(c), the Master Servicer shall deliver to (i) Moody's if it is one of the Rating Agencies, (ii) the Trustee and (iii) each Custodian a report setting forth the original status of the documents which it is holding.
(d) In the event that in connection with any Mortgage Loan the Company cannot deliver the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof certified by the public recording office) with evidence of recording thereon or a certified true concurrently with the execution and correct copy delivery of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date this Agreement solely because of a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Company shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a true and correct photocopy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Company shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation real property records the Assignment referred to in clause (I)(iii) of Section 2.01(b), except in states where, in the opinion of counsel acceptable to the Trustee and that the original recorded Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan against the claim of any subsequent transferee or a copy any successor to or creditor of the Company or the originator of such Mortgage certified by Loan and shall promptly cause to be filed the title companyForm UCC-3 assignment and UCC-1 financing statement referred to in clause (II)(vii) and (x), escrow agentrespectively, of Section 2.01(b). If any Assignment, Form UCC-3 or Form UCC-1, as applicable, is lost or returned unrecorded to the Company because of any defect therein, the Company shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as applicable, or closing attorney cure such defect, as the case may be, and cause such Assignment to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, accordance with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information)this paragraph. The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage Company shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall promptly deliver or cause to be delivered to the CustodianTrustee or the respective Custodian such Mortgage or assignment or Form UCC-3 or Form UCC-1, a photocopy of such intervening assignmentas applicable, together with (A) in the case of a delay caused or copy thereof certified by the public recording office, an officer's certification ) with evidence of recording indicated thereon upon receipt thereof from the Responsible Party certifying that such intervening assignment of mortgage has been dispatched to the appropriate public recording office for recordation or from the related Subservicer. In connection with its servicing of Cooperative Loans, the Master Servicer will use its best efforts to file timely continuation statements with regard to each financing statement and assignment relating to Cooperative Loans as to which the related Cooperative Apartment is located outside of the State of New York. In the event that the Company delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Company shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee within 45 days after the Closing Date, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(I)(iv) and (v) and 2.01(b)(II)(vi) and (vii) and that such original recorded intervening assignment of mortgage or may be delivered as a copy of such intervening assignment of mortgage certified rather than the original may be delivered in microfiche form.
(e) It is intended that the conveyances by the escrow agent, or closing attorney or Company to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the title insurance company Company to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that issued the title policy any such conveyance be deemed to be a true and complete copy pledge of the original recorded intervening assignment of mortgage will be promptly delivered Mortgage Loans by the Company to the Custodian upon receipt thereof by Trustee to secure a debt or other obligation of the Responsible Party; or (B) Company. However, in the case event that the Mortgage Loans are held to be property of an intervening assignment where the Company or of Residential Funding, or if for any reason this Agreement is held or deemed to create a public recording office retains the original recorded intervening assignment or security interest in the case where an intervening assignment Mortgage Loans, then it is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office intended that (a) this Agreement shall also be deemed to be a true and complete copy security agreement within the meaning of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; Articles 8 and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Residential Funding Mortgage Securities I Inc), Pooling and Servicing Agreement (Residential Funding Mortgage Securities I Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, [the Hedge Agreement (the delivery of which shall evidence that the fixed payment for the Hedge Agreement has been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and] except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS® System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fund that is (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 High Cost Home Loan Law effective January 1, 2005.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS® System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Securities Corp), Pooling and Servicing Agreement (Residential Asset Securities Corp)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of November 2000); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, except as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Person stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the original Mortgage sent certified by the public recording office in which such original Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment certified by the public recording office in which such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement;
(c) The Depositor may, in lieu of delivering the documents set forth in Section 2.01(b)(iv) and (v) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth below. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(iv) and (v) which has been delivered to it by the Depositor.
(d) In connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver the Mortgage, any assignment, modification, assumption agreement or cause to be delivered the original Mortgage preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause(iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by Trustee and the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereonrecord solely as nominee for Residential Funding and its successors and assigns. If any Assignment, Form UCC-3 or Form UCC-1, as applicable, is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as applicable, or if any cure such intervening assignment has not been returned from defect, as the applicable recording office or has been lost or if case may be, and cause such public recording office retains the original Assignment to be recorded assignments of mortgage, the Responsible Party in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or assignment, Form UCC-3 or Form UCC-1, as applicable, (or copy thereof as permitted by Section 2.01(b)) with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, a photocopy as contemplated by Section 2.02. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(e) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Section 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund. On the Closing Date, the Depositor shall pay, without any right of reimbursement from the Trust, to the Cap Provider the "Fixed Amount" (as defined in the related Cap Agreement) due and payable to the Cap Provider pursuant to the terms of each Cap Agreement.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed (which may be by facsimile signature) in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, unless state law does not so allow and the Custodian is so advised in writing by the Responsible Party that state law does not so allow;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, Custodian a photocopy of such Mortgage, together with (iA) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying (or certified by the title company, escrow agent, or closing attorney) stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (iiB) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or and extension agreements, if any, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form and substance acceptable for recording blank (except for the insertion of the name of the assignee and recording informationwith respect to MERS Designated Loans). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee (or, in the case of a MERS Designated Loan, MERS) with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage Mortgage or a copy of such intervening assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy appropriate public recording office to be a true and complete copy of the original recorded intervening assignment of mortgage Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or, in the event such original title policy is unavailable, a copy of primary mortgage guaranty the title policy, certified by the Responsible Party, or certified true copy of the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicablecompany;
(viii) the original lender's title policy insurance or other evidence of title such as or, if unavailable, a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided); and
(ix) if any of the above documents has been executed by a person holding a power of attorney, an original or photocopy of such power certified by the Responsible Party to be a true and correct copy of the original. The Depositor shall deliver To the extent not previously delivered to the Custodian Sponsor pursuant to the applicable recorded document Purchase Agreement, the Responsible Party shall promptly upon receipt from the respective recording office but cause to be delivered to the Custodian the original recorded document described in no event later than 240 days from the Closing Date(iii), (iv) and (vi) above. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementResponsible Party, the Responsible Party may Depositor or the Servicer, as applicable, shall forward to the Custodian Custodian, additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File." To the extent not previously delivered to the Sponsor pursuant to this Agreement, on or prior to the Closing Date, the Responsible Party shall deliver to the Custodian, Assignments of Mortgages, in blank, for each Mortgage Loan that is not a MERS Designated Loan. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the complete recording information for a Mortgage, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Responsible Party and at no expense to the Trust Fund, the Custodian, the Servicer or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Custodian, the Trustee and each Rating Agency have received an Opinion of Counsel, satisfactory in form and substance to the Custodian, the Trustee and each Rating Agency to the effect that the recordation of such Assignments of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan or (iii) if the Rating Agencies have each notified the Depositor and the Servicer in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any LIBOR Certificates to be downgraded or withdrawn; provided, however, that the Servicer shall not be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent the Servicer does not have prior knowledge of the act or omission that causes such loss. Unless the Depositor gives the Servicer notice to the contrary, the Depositor is deemed to have given the Servicer notice that the condition set forth in clause (iii) above is applicable. In addition to the foregoing, the Servicer shall cause each Assignment of Mortgage to be recorded in accordance with Accepted Servicing Practices in order to convey, upon foreclosure, the title of any Mortgaged Property to the Trust as set forth in Section 3.17 hereof. If the Assignment of Mortgage is to be recorded, the applicable Mortgage shall be assigned by the Responsible Party, at the expense of the Responsible Party to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of November 1, 2006, Securitized Asset Backed Receivables LLC Trust 2006-WM3." In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Responsible Party shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded at no expense to the Trust Fund. On or prior to the Closing Date, the Depositor shall deliver to the Trustee and the Custodian a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor, the Trustee and the Custodian. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Custodian and the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within 180 days (or such other time period as may be required by any Rating Agency) following the Closing Date, and in the event that the Responsible Party does not cure such failure within 30 days of discovery or receipt of written notification of such failure from the Depositor, the related Mortgage Loan shall, upon the request of the Depositor, be repurchased by the Responsible Party at the price and in the manner specified in Section 2.03. The foregoing repurchase obligation shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the Custodian, prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "Securitized Asset Backed Receivables LLC Trust 2006-WM3" 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, including without limitation, the representation and warranty set forth in paragraph (aaa) of Schedule III. The Trust's fiscal year is the calendar year.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans, the Cap Agreement and the Interest Rate Swap Agreement) pursuant to Section 2.01(a). The Trustee on behalf of the Trust is hereby authorized to enter into the Cap Agreement and the Interest Rate Swap Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Securitized Asset Backed Receivables LLC Trust 2006-Wm3), Pooling and Servicing Agreement (Securitized Asset Backed Receivables LLC Trust 2006-Wm3)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of the Cut-off Date).
(b) In connection with the transfer such assignment, except as set forth in Section 2.01(c) below and assignment of each Mortgage Loansubject to Section 2.01(d) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R) System, the assignment (which maY be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) witH evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(ii), (iii), (iv) and (v) which has been delivered to it by the Depositor.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by Trustee and the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of such intervening assignmentany Mortgage Loan registered on the MERS(R) System, together the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, 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 (A) or deleting, in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers' Certificate of the Depositor, with a copy delivered to the Insurer, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of February 2003); (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Policy, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or except (iia) in the case of a Mortgage where a public recording office retains the original recorded Mortgage or states where, in the case where a Mortgage is lost after recordation in a public recording office, a copy opinion of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance counsel acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If , the Assignment of Mortgage Insurer and the Master Servicer, such recording is not required to be recorded, protect the Assignment of Mortgage shall be delivered Trustee's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereon, or if record solely as nominee for Residential Funding and its successors and assigns. If any such intervening assignment has not been returned from the applicable recording office or has been Assignment is lost or if such public recording office retains returned unrecorded to the original recorded assignments Depositor because of mortgageany defect therein, the Responsible Party Depositor shall prepare a substitute Assignment or cure such defect, as the case may be, and cause such Assignment to be recorded in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including (i) the related Mortgage Note and Mortgage, and (ii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, with a copy delivered to the Insurer, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sellssell, transferstransfer, assignsassign, sets set over and otherwise conveys convey to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the assets of the Trust Fund.
. Such assignment includes all interest and principal received on or with respect to the Mortgage Loans on or after the Cut-off Date (b) other than Scheduled Payments due on the Mortgage Loans on or before the Cut-off Date). In connection with the transfer and assignment of each Mortgage Loansuch assignment, the Depositor has delivered or caused to be delivered to does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee for the benefit of the Certificateholders Trustee, the following documents or instruments with respect to each Mortgage Loan so assignedLoan:
(iA) the original The Original Mortgage Note, Note endorsed without recourse in blank by or, "Pay to the last endorseeorder of Xxxxx Fargo Bank, including N.A., as trustee, without recourse" together with all riders thereto. The Mortgage Note shall include all intervening endorsements showing a complete chain of endorsement the title from the originator Transferor to the last endorsee;[____________________].
(iiB) The Except as provided below and for each Mortgage Loan that is not a MERS Loan, the original Assignment recorded Mortgage together with all riders thereto, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the recording office, a copy of the original Mortgage together with all riders thereto certified to be true copy of the original of the Mortgage that has been delivered for recording in blankthe appropriate recording office of the jurisdiction in which the Mortgaged Property is located and in the case of each MERS Loan, unless 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.
(C) In the case of each Mortgage Loan that is not a MERS Loan;, the original Assignment of each Mortgage in blank or, to "Xxxxx Fargo Bank, N.A., as trustee."
(iiiD) 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).
(E) Originals of any intervening assignments of the Mortgage, with evidence of recording thereon or 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 and correct copy of the Mortgage original of the assignment which has been sent for recordationrecording in the appropriate jurisdiction in which the Mortgaged Property is located.
(F) Originals of all assumption and modification agreements, if any. If in connection with any Mortgage Loan, the Responsible Party Depositor cannot deliver the Mortgage, Assignments of Mortgage or cause to be delivered assumption, consolidation or modification, as the original Mortgage case may be, with evidence of recording thereon on or prior to thereon, if applicable, concurrently with the Closing Date execution and delivery of this Agreement solely because of a delay caused by the public recording office where such Mortgage, Assignments of Mortgage or assumption, consolidation or modification, as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying Trustee written notice stating that such Mortgage or assumption, consolidation or modification, as the case may be, has been dispatched delivered to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recordedThereafter, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party Depositor shall deliver or cause to be delivered to the CustodianTrustee such Mortgage, a photocopy Assignments of such intervening assignmentMortgage or assumption, together with (A) in consolidation or modification, as the case may be, with evidence of a delay caused by 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, an officer's certification the Depositor shall make or cause such endorsement to be made. With respect to any Mortgage Loan, none of the Responsible Party certifying Depositor, the Servicer, 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 Servicer 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 Mortgage and the contents of the related Mortgage File is vested in the Trustee on behalf of the Certificateholders. Neither the Depositor nor the Servicer shall take any action inconsistent with such ownership and shall not claim any ownership interest therein. The Depositor and the Servicer shall respond to any third party inquiries with respect to ownership of the Mortgage Loans by stating that such intervening assignment ownership is held by the Trustee on behalf of mortgage has been dispatched the Certificateholders. Mortgage documents relating 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly Mortgage Loans not delivered to the Custodian upon receipt thereof Trustee are and shall be held in trust by the Responsible Party; or (B) Servicer, for the benefit of the Trustee as the owner thereof, and the Servicer's 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 Servicer, 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 case Mortgage Loans. It is 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 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 intervening assignment where 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 public recording office retains pledge, it is the original recorded intervening assignment 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 case where an intervening assignment is lost after recordation in a public recording officefirst paragraph of this Section 2.01, a copy of such intervening assignment certified by such public recording office the Depositor does hereby convey, assign and set over to be a true and complete copy the Trustee for the benefit of the original recorded intervening assignment;
(vii) Certificateholders its rights and interests under the original policy of primary mortgage guaranty insurance or certificate of insuranceSale Agreement, if applicable;
(viii) including the original lenderDepositor's right, title policy insurance or other evidence of title such as a copy and interest in the representations and warranties contained in the Sale Agreement, the rights in the Transfer Agreements described therein, and the benefit of the preliminary title commitmentrepurchase 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 Loan. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Sale Agreement as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Depositor, the Seller, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed other Person in connection with the MortgageMortgage Loans or any other agreement or instrument relating thereto. The Depositor shall deliver Trustee, on behalf of the Trust Fund, is hereby authorized and directed to enter into the Custodian Transaction Oversight Agreement. It is not intended for the applicable recorded document promptly upon receipt Trustee to receive reports or other information from the respective recording office but in Transaction Oversight Manager and the Trustee has no event later than 240 days from responsibility or liability to review any such reports or information or to monitor or supervise the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms activities of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial FileTransaction Oversight Manager."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2004-Sl1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the applicable Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blankblank (or, in the case of the Goldman Conduit Mortgage Loans, in form and substance acceptable for recording or if the Mortgage is to be recorded, assigned to the Purchaser), unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgagepersonal endorsement, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If surety and/or guaranty agreements executed in connection with any all non individual Mortgage LoanLoans (corporations, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagepartnerships, the Responsible Party shall deliver or cause to be delivered to the Custodiantrusts, a photocopy of such Mortgageestates, together with etc. (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageif any);
(iv) the related original Mortgage and evidence of its recording or a certified copy of the Mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified copies in either case necessary to show a complete chain of title from the original mortgagee to the seller and evidencing recording; provided, that, except in the case of the Goldman Conduit Mortgage Loans, the assignment may be in the form of a blanket assignment or assignments, a copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or extension agreementsagreements or certified copies thereof, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) if required to maintain the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion lien of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only mortgage or if otherwise required, or, if recordation is either necessary under applicable law not required, an original or commonly required by private institutional mortgage investors copy of the agreement; provided, that, in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments case of the Goldman Conduit Mortgage Loans, an original with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment thereon is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentalways required;
(vii) if applicable to the files held by the applicable Custodian, an original or copy of a title insurance policy or evidence of primary mortgage guaranty insurance or certificate of insurance, if applicabletitle;
(viii) to the extent applicable, an original lender's title policy insurance or other evidence power of title such as a copy of the preliminary title commitment, or a copy thereof; andattorney;
(ix) any for each Mortgage Loan (if applicable to the files held by the applicable Custodian) with respect to which the Mortgagor’s name as it appears on the note does not match the borrower’s name on the Mortgage Loan Schedule, one of the following: the original of the assumption agreement, or a certified copy thereof, in either case with evidence of recording thereon if required to maintain the lien of the mortgage or if otherwise required, or, if recordation is not so required, an original or copy of such assumption agreement;
(x) if applicable to the files held by the applicable Custodian, a security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Custodial File including all items as set forth in the applicable Servicing Agreement to the extent in the possession of the Depositor or the Depositor’s Agents. The Depositor shall deliver or cause each Responsible Party to the deliver to each Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing applicable Sale Agreement, the Responsible Party may forward to the applicable Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing applicable Sale Agreement. All such mortgage documents held by the Custodian Custodians as to each Mortgage Loan shall constitute the "“Custodial File."” On or prior to the Closing Date, the Depositor shall deliver to the Custodians Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. On the Closing Date, the Depositor shall provide a written request to each Responsible Party to submit the Assignments of Mortgage for recordation, at the Responsible Party’s expense, pursuant to the applicable Sale Agreement. Each Custodian shall deliver the Assignment of Mortgages to be submitted for recordation to the applicable Responsible Party upon receipt of a written request for release in standard and customary form as set forth in Exhibit L-1, Exhibit L-2, Exhibit L-3 or Exhibit L-4, as applicable. On or prior to the Closing Date, the Depositor shall deliver to the Custodians and the Master Servicer a copy of the Mortgage Loan Schedule in electronic, machine readable medium in a form mutually acceptable to the Depositor, the applicable Custodian, the Master Servicer and the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within the time period and in the manner specified in the applicable Sale Agreement, the Trustee shall take or cause to be taken such remedial actions under the Sale Agreement against the applicable Responsible Party as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the applicable Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the applicable Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an Officer’s Certificate of an officer of the applicable Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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”) to be known, for convenience, as “GSAA Home Equity Trust 2007-9” and Citibank is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the Mortgage Loans included in the Trust is (a) covered by the Home Ownership and Equity Protection Act of 1994, or (b) considered a “high cost home,” “threshold,” “predatory” or “covered” loan (excluding “covered home loans” as defined under clause (1) of the definition of “covered home loans” in the New Jersey Home Ownership Security Act of 2002) under applicable state, federal or local laws.
Appears in 1 contract
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sellssell, transferstransfer, assignsassign, sets set over and otherwise conveys convey to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the assets of the Trust Fund.
. Such assignment includes all interest and principal received on or with respect to the Mortgage Loans on or after the Cut-off Date (b) other than Scheduled Payments due on the Mortgage Loans on or before the Cut-off Date). In connection with the transfer and assignment of each Mortgage Loansuch assignment, the Depositor has delivered or caused to be delivered to does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee for the benefit of the Certificateholders Trustee, the following documents or instruments with respect to each Mortgage Loan so assignedLoan:
(iA) the original The Original Mortgage Note, Note endorsed without recourse in blank by or, "Pay to the last endorseeorder of Xxxxx Fargo Bank, including N.A., as trustee, without recourse" together with all riders thereto. The Mortgage Note shall include all intervening endorsements showing a complete chain of endorsement the title from the originator Transferor to the last endorsee;[____________________].
(iiB) The Except as provided below and for each Mortgage Loan that is not a MERS Loan, the original Assignment recorded Mortgage together with all riders thereto, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the recording office, a copy of the original Mortgage together with all riders thereto certified to be true copy of the original of the Mortgage that has been delivered for recording in blankthe appropriate recording office of the jurisdiction in which the Mortgaged Property is located and in the case of each MERS Loan, unless 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.
(C) In the case of each Mortgage Loan that is not a MERS Loan;, the original Assignment of each Mortgage in blank or, to "Xxxxx Fargo Bank, N.A., as trustee."
(iiiD) 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).
(E) Originals of any intervening assignments of the Mortgage, with evidence of recording thereon or 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 and correct copy of the Mortgage original of the assignment which has been sent for recordation. recording in the appropriate jurisdiction in which the Mortgaged Property is located.
(F) Originals of all assumption and modification agreements, if any.
(G) If in connection with any Mortgage Loan, the Responsible Party Depositor cannot deliver the Mortgage, Assignments of Mortgage or cause to be delivered assumption, consolidation or modification, as the original Mortgage case may be, with evidence of recording thereon on or prior to thereon, if applicable, concurrently with the Closing Date execution and delivery of this Agreement solely because of a delay caused by the public recording office where such Mortgage, Assignments of Mortgage or assumption, consolidation or modification, as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying Trustee written notice stating that such Mortgage or assumption, consolidation or modification, as the case may be, has been dispatched delivered to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recordedThereafter, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party Depositor shall deliver or cause to be delivered to the CustodianTrustee such Mortgage, a photocopy Assignments of such intervening assignmentMortgage or assumption, together with (A) in consolidation or modification, as the case may be, with evidence of a delay caused by 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, an officer's certification the Depositor shall make or cause such endorsement to be made.
(H) With respect to any Mortgage Loan, none of the Responsible Party certifying Depositor, the Servicer, 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 Servicer 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 Mortgage and the contents of the related Mortgage File is vested in the Trustee on behalf of the Certificateholders. Neither the Depositor nor the Servicer shall take any action inconsistent with such ownership and shall not claim any ownership interest therein. The Depositor and the Servicer shall respond to any third party inquiries with respect to ownership of the Mortgage Loans by stating that such intervening assignment ownership is held by the Trustee on behalf of mortgage has been dispatched the Certificateholders. Mortgage documents relating 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly Mortgage Loans not delivered to the Custodian upon receipt thereof Trustee are and shall be held in trust by the Responsible Party; or (B) Servicer, for the benefit of the Trustee as the owner thereof, and the Servicer's 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 Servicer, 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 case Mortgage Loans. It is 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 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 intervening assignment where 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 public recording office retains pledge, it is the original recorded intervening assignment 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 case where an intervening assignment is lost after recordation in a public recording officefirst paragraph of this Section 2.01, a copy of such intervening assignment certified by such public recording office the Depositor does hereby convey, assign and set over to be a true and complete copy the Trustee for the benefit of the original recorded intervening assignment;
(vii) Certificateholders its rights and interests under the original policy of primary mortgage guaranty insurance or certificate of insuranceSale Agreement, if applicable;
(viii) including the original lenderDepositor's right, title policy insurance or other evidence of title such as a copy and interest in the representations and warranties contained in the Sale Agreement, the rights in the Transfer Agreements described therein, and the benefit of the preliminary title commitmentrepurchase 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 Loan. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Sale Agreement as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Depositor, the Seller, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed other Person in connection with the MortgageMortgage Loans or any other agreement or instrument relating thereto. The Depositor shall deliver Trustee, on behalf of the Trust Fund, is hereby authorized and directed to enter into the Custodian Transaction Oversight Agreement. It is not intended for the applicable recorded document promptly upon receipt Trustee to receive reports or other information from the respective recording office but in Transaction Oversight Manager and the Trustee has no event later than 240 days from responsibility or liability to review any such reports or information or to monitor or supervise the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms activities of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial FileTransaction Oversight Manager."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.16% of the Mortgage Notes for which there is a lost note affidavit and a copy of the Mortgage Note) bearing all intervening endorsements, endorsed “Pay to the order of _________, without recourse recourse” and signed in blank the name of the last endorsee. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge unless state law does not so allow and the Trustee has been advised by the applicable Original Loan Seller that state law does not so allow. If the Mortgage Loan was acquired by the applicable Original Loan Seller in a merger, the endorsement must be by “[last endorsee], successor by merger to [name of predecessor]”. If the Mortgage Loan was acquired or originated by the last endorseeendorsee while doing business under another name, including all intervening endorsements showing a complete chain of the endorsement from the originator to the must be by “[last endorsee], formerly known as [previous name]”;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the Responsible Party applicable Original Loan Seller, cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party applicable Original Loan Seller shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification ’s certificate of the Responsible Party certifying applicable Original Loan Seller (or evidence of certification on the face of such photocopy of such Mortgage) or certified by the title company, escrow agent, or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Partyapplicable Original Loan Seller; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, and except with respect to the IndyMac Mortgage Loan consolidation or extension agreements, (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) except with respect to each MERS Designated Mortgage Loan, the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party applicable Original Loan Seller shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (A1) in the case of a delay caused by the public recording office, an officer's certification ’s certificate of the Responsible Party certifying applicable Original Loan Seller (or evidence of certification on the face of such photocopy of such intervening assignment of mortgage) or certified by the title company, escrow agent, or closing attorney stating that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible Partyapplicable Original Loan Seller; or (B2) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(viiA) except with respect to the IndyMac Mortgage Loans, the original (or a copy of) the original mortgagee policy of primary mortgage guaranty title insurance or, in the event such original title policy is unavailable, a certified true copy of the related policy binder or commitment for title certified to be true and complete by the title insurance company or (B) with respect to the IndyMac Mortgage Loans, a certificate of insurance, if applicabletitle or attorney’s opinion of title (accompanied by an abstract of title);
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided); and
(ix) except with respect to the Fremont Mortgage Loans, the original or a copy, certified by the appropriate recording office (or by American Home in the case of the American Home Mortgage Loans), of the recorded power of attorney, if the Mortgage Loan was executed pursuant to a power of attorney, with evidence of its recording (to the extent required) in the case of the IndyMac Mortgage Loans. Each Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a lost note affidavit as of the Closing Date. In the event one or more lost note affidavits are provided to cover multiple missing Mortgage Notes on the Closing Date, the Depositor shall use reasonable efforts to cause the Purchaser to deliver to the Trustee the applicable individual lost note affidavits within ten (10) Business Days of the Closing Date. If the Purchaser fails to deliver the required individual lost note affidavits within the specified period of time, the Trustee shall notify Fremont, American Home or IndyMac, as applicable, to take such remedial actions, including, without limitation, the repurchase by the Fremont of any Fremont Mortgage Loan within 30 days of the Closing Date, or the repurchase by American Home or IndyMac of any American Home Mortgage Loan or IndyMac Mortgage Loan, respectively, within 90 days of the Closing Date. The Depositor shall use reasonable efforts to cause the Purchaser to deliver to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 180 days from the Closing Date. From time If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. (“MERS”) or its designee, no Assignment of Mortgage in favor of the Trustee will be required to time, pursuant to the Master Seller's Warranties be prepared or delivered and Servicing Agreementinstead, the Responsible Party may applicable Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trust 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 Depositor shall use reasonable efforts to cause the Purchaser to forward to the Custodian additional original documents, Trustee additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, applicable Original Loan Seller in accordance with the terms of the Master Seller's Warranties and Servicing applicable Purchase Agreement. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "“Custodial File."” On or prior to the Closing Date, the Depositor shall use reasonable efforts to cause the Purchaser to deliver to the Trustee Assignments of Mortgages, in blank, for each applicable Mortgage Loan (except with respect to each MERS Designated Mortgage Loan). The Depositor shall use reasonable efforts to cause the Purchaser to cause the Assignments of Mortgage with completed recording information to be provided to the Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the applicable Servicer of the fully completed Assignments of Mortgages in recordable form, the Depositor shall promptly submit or cause to be submitted for recording, at the expense of the Purchaser, at no expense to the Trust Fund, the Depositor, the Master Servicer, the Securities Administrator, the applicable Servicer or the Trustee in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). Notwithstanding the foregoing, 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 (i) (except with respect to any Mortgage Loan located in Maryland) unless the Trustee and the Depositor receive written 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 or (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan; provided, however, each Assignment of Mortgage that is not a MERS Designated Mortgage Loan shall be submitted for recording in the manner described above, at no expense to the Trust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) the occurrence of an Event of Default, (iii) upon receipt of notice from the Servicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage and (iv) upon receipt of notice from the Servicer, any Mortgage Loan that is 90 days or more Delinquent. In the event of (i) through (iv) set forth in the immediately preceding sentence, upon request of the Depositor, the Trustee shall enforce the obligations of the Purchaser to deliver such Assignments of Mortgage for recording as provided above, promptly and in any event within 30 days following receipt of notice by the Purchaser. Notwithstanding the foregoing, if the Purchaser fails to pay the cost of recording the Assignments of Mortgage, such expense will be paid by the Trustee from the assets of the Trust. In the event an Assignment of Mortgage is not recorded, neither the Trustee nor the applicable Servicer will have any liability for its failure to act on notices that were not received and would have been received if such Assignment had been recorded. If the Assignment of Mortgage is to be recorded, the Depositor shall use reasonable efforts to cause the Purchaser to assign the Mortgage, at the Purchaser’s expense, to “Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of June 1, 2006, GSAMP Trust 2006-S4.” In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Depositor shall use reasonable efforts to cause the Purchaser to promptly prepare a substitute assignment to cure such defect and thereafter cause each such assignment to be duly recorded at the expense of the Purchaser. On or prior to the Closing Date, the Depositor shall deliver to the Trustee, the Master Servicer and the applicable Servicer a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor, the Master Servicer and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Master Servicer, the Securities Administrator, the Trustee and each Servicer, and the Trustee shall promptly, upon receipt of the Mortgage Loan Schedule (or any other mortgage loan schedules received by the Trustee from the Depositor), inform the Depositor of receipt thereof. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee within 90 days following the Closing Date, and in the event that the Purchaser does not cause such failure to be cured within 60 days of discovery of receipt of written notification of such failure from the Depositor, the Depositor shall cause the repurchase of such Mortgage Loan by the Purchaser at the price and in the manner specified in Section 2.03. The foregoing repurchase obligation shall not apply in the event that the Purchaser cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Purchaser shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer’s certificate of an officer of the Purchaser confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Purchaser shall be deemed to have been satisfied upon delivery by the Purchaser to the Trustee prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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”) to be known, for convenience, as “GSAMP Trust 2006-S4” 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, including the requirement that no Mortgage Loan be a High Cost Mortgage Loan and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 be governed by the Georgia Fair Lending Act.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans, the Fremont Assignment Agreement, the IndyMac Assignment Agreement and the American Home Assignment Agreement) pursuant to Section 2.01(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GSAMP Trust 2006-S4)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of the Cut-off Date) and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Yield Maintenance Agreement (the delivery of which shall evidence that the fixed payment for the Yield Maintenance Agreement have been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(ii), (iii), (iv) and (v) which has been delivered to it by the Depositor.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by Trustee and the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RAMP Series 2005-Rz1 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed in the name of the last endorsee by an authorized officer; except that for Mortgage Loans with loan numbers 614762, 623994, 626452, 629181, 629809, and 632749, there is a lost note affidavit and a copy of the Mortgage Note. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised by the Responsible Party that state law so allows;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreementsagreements (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (Ai) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible Party; or (Bii) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original or duplicate lender's title policy and any riders thereto or, any one of primary mortgage guaranty insurance an original title binder, an original or certificate copy of insurancethe preliminary title report or an original or copy of the title commitment, if applicable;and if, copies then certified by the title company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor Responsible Party shall deliver to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may shall forward to the Custodian Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing this Agreement. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File". On or prior to the Closing Date, the Responsible Party shall deliver to the Trustee Assignments of Mortgages, in blank, for each Mortgage Loan. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the recording information for a Mortgage, the Servicer shall promptly submit or cause to be submitted for recording at the expense of the Responsible Party, 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 Section 2.01(b)(v). Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be completed and submitted for recording with respect to any Mortgage Loan if the Trustee and each Rating Agency has received an opinion of counsel, satisfactory in form and substance to the Trustee and each Rating Agency, to the effect that the recordation of such Assignments in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned by the Responsible Party, at the expense of the Responsible Party, to "Deutsche Bank National Trust Company as trustee under the Pooling and Servicing Agreement dated as of July 1, 2002, GSAMP Trust 2002-NC1." In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Responsible Party shall promptly prepare a substitute assignment to cure such defect and thereafter cause each such assignment to be duly recorded. On or prior to the Closing Date, the Depositor shall deliver to the Trustee a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee within 90 days following the Closing Date, and in the event that the Responsible Party does not cure such failure within 30 days of discovery or receipt of written notification of such failure from the Depositor, the related Mortgage Loan shall, upon the request of the Depositor, be repurchased by the Responsible Party at the price and in the manner specified in Section 2.03. The foregoing repurchase obligation shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that, the Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of a servicing officer of the Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the Trustee prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAMP Trust 2002-NC1" and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Mort Pas THR Cert Ser 2002 Nc1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Trustee, the Yield Maintenance Agreement (the delivery of which shall evidence that the fixed payment for the Yield Maintenance Agreement has been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with the Custodian on behalf (or one or more custodians), as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R)System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R)System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian (or custodians, if applicable), deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agentexcept (a) in states where, or closing attorney to be a true and complete copy in an Opinion of the original recorded Mortgage will be promptly delivered Counsel acceptable to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R)System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R)System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RASC Series 2006-Emx6 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of April 2004); (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fundthat is either (i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, except as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date because Trustee with evidence of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage indicated thereon or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy assignment with evidence of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageindicated thereon;
(iv) the originals of all assumption, modification, consolidation The original recorded assignment or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence showing an unbroken chain of recording thereon, or if any such intervening assignment has not been returned title from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered originator to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched Person assigning it to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage Trustee (or a copy of such intervening assignment of mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insuranceMERS, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by is registered on the Responsible Party, in accordance with MERS(R) System and noting the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."presence
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ramp Series 2004-Rs4 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of March 2004); (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fundthat is either (i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, except as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence
of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian that is the duly appointed agent of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the appropriate public office for real property records the Assignment referred to in clause(iii) of Section 2.01(b), except (a) in states where, in the Opinion of Counsel acceptable to the Trustee and the Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iiii), (iv) and (v) that may be delivered as a copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, 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 a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note and Mortgage, and any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Ramp Trust 2004-Rs3)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the applicable Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blankblank (or, in the case of the Goldman Conduit Mortgage Loans, in form and substance acceptable for recording or if the Mortgage is to be recorded, assigned to the Purchaser), unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgagepersonal endorsement, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If surety and/or guaranty agreements executed in connection with any all non individual Mortgage LoanLoans (corporations, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagepartnerships, the Responsible Party shall deliver or cause to be delivered to the Custodiantrusts, a photocopy of such Mortgageestates, together with etc. (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageif any);
(iv) the related original Mortgage and evidence of its recording or a certified copy of the Mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified copies in either case necessary to show a complete chain of title from the original mortgagee to the seller and evidencing recording; provided, that, except in the case of the Goldman Conduit Mortgage Loans, the assignment may be in the form of a blanket assignment or assignments, a copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or extension agreementsagreements or certified copies thereof, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) if required to maintain the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion lien of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only mortgage or if otherwise required, or, if recordation is either necessary under applicable law not required, an original or commonly required by private institutional mortgage investors copy of the agreement; provided, that, in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments case of the Goldman Conduit Mortgage Loans, an original with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment thereon is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentalways required;
(vii) if applicable to the files held by the applicable Custodian, an original or copy of a title insurance policy or evidence of primary mortgage guaranty insurance or certificate of insurance, if applicabletitle;
(viii) to the extent applicable, an original lender's title policy insurance or other evidence power of title such as a copy of the preliminary title commitment, or a copy thereof; andattorney;
(ix) any for each Mortgage Loan (if applicable to the files held by the applicable Custodian) with respect to which the Mortgagor's name as it appears on the note does not match the borrower's name on the Mortgage Loan Schedule, one of the following: the original of the assumption agreement, or a certified copy thereof, in either case with evidence of recording thereon if required to maintain the lien of the mortgage or if otherwise required, or, if recordation is not so required, an original or copy of such assumption agreement;
(x) if applicable to the files held by the applicable Custodian, a security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Custodial File including all items as set forth in the applicable Servicing Agreement to the extent in the possession of the Depositor or the Depositor's Agents. The Depositor shall deliver or cause each Responsible Party to the deliver to each Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing applicable Sale Agreement, the Responsible Party may forward to the applicable Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing applicable Sale Agreement. All such mortgage documents held by the Custodian Custodians as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Custodians Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. On the Closing Date, the Depositor shall provide a written request to each Responsible Party to submit the Assignments of Mortgage for recordation, at the Responsible Party's expense, pursuant to the applicable Sale Agreement. Each Custodian shall deliver the Assignment of Mortgages to be submitted for recordation to the applicable Responsible Party upon receipt of a written request for release in standard and customary form as set forth in Exhibit L, Exhibit L-1 or Exhibit L-2, as applicable. On or prior to the Closing Date, the Depositor shall deliver to the Custodians and the Master Servicer a copy of the Mortgage Loan Schedule in electronic, machine readable medium in a form mutually acceptable to the Depositor, the applicable Custodian, the Master Servicer and the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within the time period and in the manner specified in the applicable Sale Agreement, the Trustee shall take or cause to be taken such remedial actions under the Sale Agreement against the applicable Responsible Party as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the applicable Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the applicable Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the applicable Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAA Home Equity Trust 2006-17" and Deutsche Bank is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the Mortgage Loans included in the Trust is (a) covered by the Home Ownership and Equity Protection Act of 1994, or (b) considered a "high cost home," "threshold," "predatory" or "covered" loan (excluding "covered home loans" as defined under clause (1) of the definition of "covered home loans" in the New Jersey Home Ownership Security Act of 2002) under applicable state, federal or local laws.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSAA Home Equity Trust 2006-17)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date; and (ii) all proceeds of the foregoing. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fundthat is either (i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
(b) In connection with such assignment, and contemporaneously with the transfer delivery of this Agreement, and assignment of each Mortgage Loanexcept as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments with respect to each Mortgage Loan so assigned:(or copies thereof as permitted by this Section):
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence
of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause(iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by Trustee and the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereon, or if record solely as nominee for Residential Funding and its successors and assigns. If any such intervening assignment has not been returned from the applicable recording office or has been Assignment is lost or if such public recording office retains returned unrecorded to the original recorded assignments Depositor because of mortgageany defect therein, the Responsible Party Depositor shall prepare a substitute Assignment or cure such defect, as the case may be, and cause such Assignment to be recorded in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) [Reserved]
(e) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including (i) the related Mortgage Note and Mortgage, and (ii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RAAC Series 2004-Sp2)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the CertificateholdersCertificateholders and the Certificate Insurer, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of Trustee or the Trustee Custodian, as applicable, for the benefit of the related Certificateholders and the Certificate Insurer the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for any Mortgage Notes for which there is a lost note affidavit and a copy of the Mortgage Note, endorsed without recourse in blank by the last endorsee, including ) bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed “Pay to the order of _____________, without recourse” and signed in the name of the last endorsee. To the extent that there is no room on the face any Mortgage Note for an endorsement, the endorsement may be contained on an allonge, unless state law does not so allow and the Trustee has been advised by the Depositor that state law does not so allow. If the Mortgage Loan was acquired by the [Original Loan Seller] in a merger, the endorsement must be by “[last endorsee], successor by merger to [name of predecessor]”. If the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, the endorsement must be by “[last endorsee], formerly known as [previous name]”;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote, if provided;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the related Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the related Responsible Party (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the Trustee or the Custodian, as applicable, a photocopy of such Mortgage, together with (iA) in the case of a delay caused by the public recording office, an officer's certification ’s certificate of the related Responsible Party certifying Party, or evidence of certification on the face of such photocopy of such Mortgage, or certified by the title company, escrow agent, or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee or the Custodian, as applicable, upon receipt thereof by the related Responsible Party; or (iiB) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreementsagreements (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) except with respect to each MERS Designated Mortgage Loan, the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments Assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments Assignments of mortgageMortgage, the related Responsible Party (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the Trustee or the Custodian, as applicable, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's ’s certificate of such Responsible Party, or evidence of certification on the face of such photocopy of such intervening assignment, or certified by the Responsible Party certifying title company, escrow agent, or closing attorney stating that such intervening assignment Assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment Assignment of mortgage Mortgage or a copy of such intervening assignment Assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee or the Custodian, as applicable, upon receipt thereof by the related Responsible Party; , or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy or copy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's lxxxxx’s title policy insurance or other evidence any one of an original title such as a binder, an original or copy of the preliminary title report or an original or copy of the title commitment, or a copy thereof; and
(ixviii) any a security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor shall use reasonable efforts to assist the Trustee, the Custodian and the related Servicer in enforcing the obligations of the Purchaser under the related Responsible Party Agreements. Each Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a lost note affidavit as of the Closing Date. In the event one or more lost note affidavits are provided to cover multiple missing Mortgage Notes on the Closing Date, the Depositor shall use reasonable efforts to cause the related Responsible Party to deliver to the Custodian Trustee or the Custodian, as applicable, the applicable individual lost note affidavits within ten (10) Business Days of the Closing Date. If such Responsible Party fails to deliver the required individual lost note affidavits within the specified period of time, the Trustee shall notify such Responsible Party to take such remedial actions, including, without limitation, the repurchase by such Responsible Party of such Mortgage Loan within 60 days of the Closing Date. The Depositor shall use reasonable efforts to cause the Purchaser and the related Responsible Party to deliver to the Trustee or the Custodian, as applicable, the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 150 days from the Closing Date. From time If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. (“MERS”) or its designee, no Assignment of Mortgage in favor of the Trustee will be required to timebe prepared or delivered and instead, pursuant the applicable Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trust 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 Depositor shall use reasonable efforts to cause the Purchaser and the related Responsible Party, as applicable, to forward, with respect to the Master Seller's Warranties and Servicing Agreementrelated Mortgage Loans, the Responsible Party may forward to the Custodian additional original documentsTrustee or the Custodian, as applicable, additional documents evidencing an assumption, modification, consolidation or extension of a related Mortgage Loan approved by the such Responsible Party, Party in accordance with the terms of the Master Seller's Warranties and Servicing Agreementrelated Responsible Party Agreements. All such mortgage documents held by the Custodian Trustee or the Custodian, as applicable, as to each Mortgage Loan shall constitute the "“Custodial File."” The Trustee shall have no duty or obligation to request or verify whether any such mortgage documents exist. On or prior to the Closing Date, the Depositor shall use reasonable efforts to cause the Purchaser or related Responsible Party to deliver to the Trustee or the Custodian, as applicable, Assignments of Mortgages, in blank, for each applicable Mortgage Loan (except with respect to each MERS Designated Mortgage Loan). The Depositor shall use reasonable efforts to cause the Purchaser or related Responsible Party to cause the Assignments of Mortgage with completed recording information to be provided to the related Servicer in a reasonably acceptable manner. In the event that any Assignment of Mortgage is not recorded or is improperly recorded, the applicable Servicer will have no liability directly resulting from such lack of recordation or such improper recordation and solely resulting from any failure to receive notices made with respect to such Assignment of Mortgage, except for any liability incurred by reason of willful misfeasance, bad faith or negligence by such Servicer in the performance hereunder or by reason of reckless disregard of its obligations and duties hereunder. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Trustee or Custodian, as applicable, of the fully completed Assignments of Mortgages in recordable form, the Depositor shall promptly submit or cause to be submitted for recording, at the expense of the related Responsible Party pursuant to the related Responsible Party Agreement, at no expense to the Trust Fund, the Depositor, the Custodian, the Master Servicer or the Trustee in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) except with respect to any Mortgage Loan located in Maryland or Kentucky, unless the Trustee and the Depositor receive written 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 (which, with respect to the Class A-1 Certificates, shall be without giving effect to the Policy) or (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan. If the Assignment of Mortgage is to be recorded, the Depositor shall use reasonable efforts to cause the Purchaser to assign the Mortgage at the Purchaser’s expense to “Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of February 1, 2007, GSAA Trust 2007-S1.” In the event that any such assignment is lost or returned unrecorded because of a defect therein with respect to any Mortgage Loan, and such defect is not cured, the Trust shall cause the Purchaser to repurchase such Mortgage Loan pursuant to the related Responsible Party Agreements. On or prior to the Closing Date, the Depositor shall deliver to the Trustee, the Custodian, the Certificate Insurer, the Master Servicer and the related Servicer a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor, the Custodian, the Master Servicer, the related Servicer and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Trustee, the Custodian, the Certificate Insurer, the Master Servicer and the related Servicer. In the event, with respect to any Mortgage Loan, that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee or the Custodian, as applicable, within 180 days of the Closing Date, the Trustee shall notify the Depositor and the Depositor shall take or cause to be taken such remedial actions under the related Responsible Party Agreement as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the related Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the related Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the related Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer’s certificate of an officer of the related Responsible Party confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the related Responsible Party shall be deemed to have been satisfied upon delivery by the related Responsible Party to the Trustee or the Custodian, as applicable, prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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”) to be known, for convenience, as “GSAA Trust 2007-S1” 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, including the requirement that no Mortgage Loan be a High Cost Mortgage Loan and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 be governed by the Georgia Fair Lending Act.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans, the Responsible Party Agreements and the Representations and Warranties Agreement) pursuant to Section 2.01(a). The parties hereby acknowledge and agree that the execution and delivery of the Interest Rate Swap Agreement by the Supplemental Interest Trust Trustee on behalf of the Supplemental Interest Trust was authorized and is hereby ratified and confirmed.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GSAA Home Equity Trust 2007-S1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Yield Maintenance Agreement (the delivery of which shall evidence that the fixed payment for the Yield Maintenance Agreement has been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS® System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agentexcept (a) in states where, or closing attorney to be a true and complete copy in an Opinion of the original recorded Mortgage will be promptly delivered Counsel acceptable to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS® System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RAMP Series 2006-Rz2 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date; and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer delivery of this Agreement, and assignment of each Mortgage Loanexcept as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section)
(I) with respect to each Mortgage Loan so assigned:assigned (other than a Cooperative Loan):
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageindicated thereon;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the applicable Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blankblank (or, in the case of the Goldman Conduit Mortgage Loans, in form and substance acceptable for recording or if the Mortgage is to be recorded, assigned to the Purchaser), unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgagepersonal endorsement, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If surety and/or guaranty agreements executed in connection with any all non individual Mortgage LoanLoans (corporations, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagepartnerships, the Responsible Party shall deliver or cause to be delivered to the Custodiantrusts, a photocopy of such Mortgageestates, together with etc. (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageif any);
(iv) the related original Mortgage and evidence of its recording or a certified copy of the Mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified copies in either case necessary to show a complete chain of title from the original mortgagee to the seller and evidencing recording; provided, that, except in the case of the Goldman Conduit Mortgage Loans, the assignment may be in the form of a blanket assignment or assignments, a copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or extension agreementsagreements or certified copies thereof, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) if required to maintain the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion lien of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only mortgage or if otherwise required, or, if recordation is either necessary under applicable law not required, an original or commonly required by private institutional mortgage investors copy of the agreement; provided, that, in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments case of the Goldman Conduit Mortgage Loans, an original with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment thereon is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentalways required;
(vii) if applicable to the files held by the applicable Custodian, an original or copy of a title insurance policy or evidence of primary mortgage guaranty insurance or certificate of insurance, if applicabletitle;
(viii) to the extent applicable, an original lender's title policy insurance or other evidence power of title such as a copy of the preliminary title commitment, or a copy thereof; andattorney;
(ix) any for each Mortgage Loan (if applicable to the files held by the applicable Custodian) with respect to which the Mortgagor's name as it appears on the note does not match the borrower's name on the Mortgage Loan Schedule, one of the following: the original of the assumption agreement, or a certified copy thereof, in either case with evidence of recording thereon if required to maintain the lien of the mortgage or if otherwise required, or, if recordation is not so required, an original or copy of such assumption agreement;
(x) if applicable to the files held by the applicable Custodian, a security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Custodial File including all items as set forth in the applicable Servicing Agreement to the extent in the possession of the Depositor or the Depositor's Agents. The Depositor shall deliver or cause each Responsible Party to the deliver to each Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing applicable Sale Agreement, the Responsible Party may forward to the applicable Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing applicable Sale Agreement. All such mortgage documents held by the Custodian Custodians as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Custodians Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. On the Closing Date, the Depositor shall provide a written request to each Responsible Party to submit the Assignments of Mortgage for recordation, at the Responsible Party's expense, pursuant to the applicable Sale Agreement. Each Custodian shall deliver the Assignment of Mortgages to be submitted for recordation to the applicable Responsible Party upon receipt of a written request for release in standard and customary form as set forth in Exhibit L, Exhibit L-1 or Exhibit L-2, as applicable. On or prior to the Closing Date, the Depositor shall deliver to the Custodians and the Master Servicer a copy of the Mortgage Loan Schedule in electronic, machine readable medium in a form mutually acceptable to the Depositor, the applicable Custodian, the Master Servicer and the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within the time period and in the manner specified in the applicable Sale Agreement, the Trustee shall take or cause to be taken such remedial actions under the Sale Agreement against the applicable Responsible Party as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the applicable Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the applicable Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the applicable Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAA Home Equity Trust 2006-19" and U.S. Bank is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the Mortgage Loans included in the Trust is (a) covered by the Home Ownership and Equity Protection Act of 1994, or (b) considered a "high cost home," "threshold," "predatory" or "covered" loan (excluding "covered home loans" as defined under clause (1) of the definition of "covered home loans" in the New Jersey Home Ownership Security Act of 2002) under applicable state, federal or local laws.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSAA Home Equity Trust 2006-19)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before the Cut-Off Date). The foregoing sale, transfer, assignment and set over does not and is not intended to result in a creation of an assumption by the Trustee of any obligation of the Depositor or any other Person in connection with the Mortgage Loans or any agreement or instrument relating thereto, except as specifically set forth herein.
(b) In connection with the such transfer and assignment of each Mortgage Loanassignment, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee Trustee, for the benefit of the Certificateholders Certificateholders, the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile signature in the following form: "Pay to the order of The Bank of New York, as Trustee, without recourse in blank by the last endorsee, including recourse," with all necessary intervening endorsements showing a complete chain of endorsement from the originator to the last endorseeTrustee (each such endorsement being sufficient to transfer all right, title and interest of the party so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note);
(ii) The original Assignment of Mortgage in blankexcept as provided below, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original recorded Mortgage with evidence of a recording thereon on thereon, or prior to the Closing Date because of a delay caused by the public recording office where if any such Mortgage has not been delivered for recordation returned from the applicable recording office or because such Mortgage has been lost lost, or because if such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title companyDepositor as being a true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, escrow agenta duly executed Assignment of Mortgage to "The Bank of New York, as trustee for the holders of the Bank of America Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2002-10" (which may be included in a blanket assignment or closing attorney to be assignments), together with, except as provided below, originals of all interim recorded assignments of such mortgage or a copy of such interim assignment certified by the Depositor as being a true and complete copy of the original recorded intervening assignments of Mortgage will (each such assignment, when duly and validly completed, to be promptly delivered in recordable form and sufficient to effect the assignment of and transfer to the Custodian upon receipt thereof by assignee thereof, under the Responsible PartyMortgage to which the assignment relates); or (ii) in provided that, if the case of a related Mortgage where a public recording office retains has not been returned from the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a applicable public recording office, a copy such Assignment of such Mortgage certified by such public recording office or may exclude the information to be provided by the title insurance company that issued recording office; and provided, further, if the title policy related Mortgage has been recorded in the name of Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be a true prepared or delivered and complete copy instead, the Servicer shall take all actions as are necessary to cause the Trust to be shown as the owner of the original recorded Mortgagerelated Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or extension agreements, if any, with evidence of recording thereon, or certified true copies of any document sent for recordationif any;
(v) the original Assignment or duplicate original mortgagee title insurance policy and all riders thereto;
(vi) the original of any guarantee executed in connection with the Mortgage Note;
(vii) for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion if any, which is secured by a residential long-term lease, a copy of the name lease with evidence of recording indicated thereon, or, if the lease is in the process of being recorded, a photocopy of the assignee and recording information). The Assignment lease, certified by an officer of the respective prior owner of such Mortgage must be duly recorded only if recordation is either necessary under Loan or by the applicable law title insurance company, closing/settlement/escrow agent or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is company or closing attorney to be recorded, a true and correct copy of the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"lease transmitted for recordation;
(viviii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of recording thereon; 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). provided, however, that on the Closing Date, with respect to item (iii), the Depositor has delivered to the Trustee a copy of such Assignment of Mortgage in blank and has caused the Servicer to retain the completed Assignment of Mortgage for recording as described below, unless such Mortgage has been recorded in the name of MERS or its designee. In addition, if the Depositor is unable to deliver or cause the delivery of any original Mortgage Note due to the loss of such original Mortgage Note, the Depositor may deliver a copy of such Mortgage Note, together with a lost note affidavit, and shall thereby be deemed to have satisfied the document delivery requirements of this Section 2.01(b). As set forth on Exhibit L attached hereto is a list of all states where recordation is required by either Rating Agency to obtain the initial ratings of the Certificates. The Trustee may rely and shall be protected in relying upon the information contained in such Exhibit L. If in connection with any Mortgage Loans, the Depositor cannot deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all assumption, modification, consolidation or extension agreements, if any, or if any (D) the lender's title policy (together with all riders thereto) satisfying the requirements of clause (ii), (iii), (iv) or (v) above, respectively, concurrently with the execution and delivery hereof because such intervening assignment has document or documents have not been returned from the applicable recording office or has been lost or if such public recording office retains in the original recorded assignments case of mortgageclause (ii), (iii) or (iv) above, or because the title policy has not been delivered to either the Servicer or the Depositor by the applicable title insurer in the case of clause (v) above, the Responsible Party Depositor shall promptly deliver or cause to be delivered to the CustodianTrustee or the Custodian on behalf of the Trustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording officeclause (ii), an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; (iii) or (Biv) in the case of an intervening assignment where a public recording office retains the original recorded intervening above, such Mortgage, such interim assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension agreement, as the case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office, but in no event shall any such delivery of any such documents or instruments be made later than one year following the Closing Date, unless, in the case of clause (ii), (iii) or (iv) above, there has been a continuing delay at the applicable recording office or, in the case of clause (v), there has been a continuing delay at the applicable insurer and the Depositor has delivered the Officer's Certificate to such effect to the Trustee. The Depositor shall forward or cause to be forwarded to the Trustee (1) from time to time additional original documents evidencing an assumption or modification of a Mortgage Loan approved and (2) any other documents required to be delivered by the Responsible PartyDepositor or the Servicer to the Trustee or the Custodian on the Trustee's behalf. In the event that the original Mortgage is not delivered and in connection with the payment in full of the related Mortgage Loan the public recording office requires the presentation of a "lost instruments affidavit and indemnity" or any equivalent document, because only a copy of the Mortgage can be delivered with the instrument of satisfaction or reconveyance, the Servicer shall prepare, execute and deliver or cause to be prepared, executed and delivered, on behalf of the Trust, such a document to the public recording office. As promptly as practicable subsequent to such transfer and assignment, and in any event, within 30 days thereafter, the Servicer shall (except for any Mortgage which has been recorded in the name of MERS or its designee) (I) cause each Assignment of Mortgage to be in proper form for recording in the appropriate public office for real property records within 30 days of the Closing Date and (II) at the Depositor's expense, cause to be 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 Assignment of a 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 30 days after the receipt thereof and, no recording of an Assignment of Mortgage will be required in a state if either (i) the Depositor furnishes to the Trustee an unqualified Opinion of Counsel reasonably acceptable to the Trustee to the effect that recordation of such assignment is not necessary under applicable state law to preserve the Trustee's interest in the related Mortgage Loan against the claim of any subsequent transferee of such Mortgage Loan or any successor to, or creditor of, the Depositor or the originator of such Mortgage Loan or (ii) the recordation of an Assignment of Mortgage in such state is not required by either Rating Agency in order to obtain the initial ratings on the Certificates on the Closing Date. In the case of Mortgage Loans that have been prepaid in full as of the Closing Date, the Depositor, in accordance with lieu of delivering the terms of above documents to the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by Trustee, or the Custodian as on the Trustee's behalf, will cause the Servicer to each Mortgage Loan shall constitute deposit in the "Servicer Custodial FileAccount the portion of such payment that is required to be deposited in the Servicer Custodial Account pursuant to Section 3.08."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bank of America Mortgage Sec Inc Mort Ps THR CRT Ser 2002-10)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to Xxxxx Fargo with respect to the Custodian on behalf of Xxxxx Fargo Mortgage Loans, to LaSalle with respect to the Trustee LaSalle Mortgage Loans, and to Deutsche Bank with respect to the Deutsche Bank Mortgage Loans, for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage NoteNote bearing all intervening endorsements, endorsed "Pay to the order of _____________, without recourse recourse" and signed (which may be by facsimile signature) in blank the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Note for endorsements, the endorsement may be contained on an allonge, unless the Trustee is advised in writing by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator applicable Responsible Party (pursuant to the last endorseeapplicable Purchase Agreement) or the Depositor, as applicable, that state law does not so allow;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the applicable Responsible Party or the Depositor, as applicable, shall deliver or cause to be delivered to the Custodian, applicable Custodian a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title companyapplicable Responsible Party or the Depositor, escrow agentas applicable, or closing attorney to be a true and complete copy of such Mortgage and shall forward to the applicable Custodian such original recorded Mortgage will be promptly delivered to within 14 days following the Custodian upon receipt thereof by the applicable Responsible Party's or the Depositor's receipt of such Mortgage from the applicable public recording office; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form and substance acceptable for recording blank (except for the insertion of the name of the assignee and recording informationwith respect to MERS Designated Mortgage Loans). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee with evidence of recording thereonthereon or a certified true copy of such intervening assignments of Mortgage submitted for recording, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the applicable Responsible Party or the Depositor, as applicable, shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agentapplicable Responsible Party or the Depositor, or closing attorney or by the title insurance company that issued the title policy as applicable, to be a true and complete copy of such intervening assignment and shall forward to the applicable Custodian such original recorded intervening assignment within 14 days following the applicable Responsible Party or the Depositor's receipt of mortgage will be promptly delivered to such from the Custodian upon receipt thereof by the Responsible Partyapplicable public recording office; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or attorney's opinion of primary mortgage guaranty title and abstract of title, or, in the event such original title policy is unavailable, a certified true copy of the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor will use its reasonable efforts to assist the Trustee and the Servicers in enforcing the obligations of each Responsible Party under this Agreement. The Depositor shall cause to be delivered, or shall deliver in the case of a Depositor Mortgage Loan, to the Custodian Trustee or applicable Custodian, as applicable, the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 180 days from the Closing Date. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the applicable Servicer shall take all reasonable actions as are necessary at the expense of the applicable Responsible Party to the extent permitted under the related Purchase Agreement and otherwise at the expense of the Depositor to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the applicable Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee or applicable Custodian, as applicable, additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee or applicable Custodian, as applicable, as to each Mortgage Loan shall constitute the "Custodial File". No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the applicable Servicer of the complete recording information for a Mortgage, the applicable Servicer shall promptly submit or cause to be submitted for recording, at the expense of the applicable Responsible Party as required pursuant to the related Purchase Agreement, or the Depositor in the case of a Depositor Mortgage Loan, and at no expense to the Trust Fund, the Trustee, the applicable Servicer, or, except in the case of a Depositor Mortgage Loan, the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Trustee, the Custodians and each Rating Agency have 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan or (iii) if the Rating Agencies have each notified the Depositor in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any LIBOR Certificates to be downgraded or withdrawn; provided, however, that no Servicer shall be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent the applicable Servicer does not have prior knowledge of the act or omission that causes such loss. However, with respect to the Assignments of Mortgage referred to in clauses (i) and (ii) above, if foreclosure proceedings occur against a Mortgaged Property, the Depositor shall notify the applicable Servicer and such Servicer shall record such Assignment of Mortgage at the expense of the Depositor, in the case of a Depositor Mortgage Loan, or the related Responsible Party as required pursuant to the related Purchase Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Xxxxx Fargo Bank, National Association, as trustee under the Pooling and Servicing Agreement dated as of October 1, 2005, Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2005-HE5". In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Responsible Party shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded. On or prior to the Closing Date, the Depositor shall deliver to the Trustee and the applicable Custodian, as applicable, a copy of the Data Tape Information in an electronic, machine readable medium in a form mutually acceptable to the Trustee or applicable Custodian, as applicable. Within twenty (20) Business Days of the Closing Date, the Depositor shall deliver copies of the complete Mortgage Loan Schedule to the Trustee, each Custodian and each Servicer, and the Trustee, each Custodian and each Servicer shall promptly acknowledge receipt thereof.
(c) 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") to be known, for convenience, as "XXXXXX XXXXXXX ABS CAPITAL I INC. TRUST 2005-HE5" and Xxxxx Fargo Bank, National Association 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, including without limitation, the representations and warranties set forth in paragraph (43) of Schedule VI, paragraph (46) of Schedule VII, paragraph (yy) of Schedule VIII to this Agreement, paragraph (li) of Schedule V-B and paragraph (50) of Schedule V-C.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans and the Interest Rate Swap Agreement) pursuant to Section 2.01(a). The Trustee on behalf of the Trust is hereby directed to enter into the Interest Rate Swap Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2005-He5)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date; and (ii) all proceeds of the foregoing. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fundthat is either (i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
(b) In connection with such assignment, and contemporaneously with the transfer delivery of this Agreement, and assignment of each Mortgage Loanexcept as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section)
(I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original 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 or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement; and and (II) with respect to each Cooperative Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original A counterpart of the Cooperative Lease and the Assignment of Mortgage in blank, unless Proprietary Lease to the Mortgage originator of the Cooperative Loan is a MERS Loanwith intervening assignments showing an unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the original Mortgage, related Cooperative Stock pledged with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage respect to such Cooperative Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with an undated stock power (ior other similar instrument) executed in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageblank;
(iv) The original recognition agreement by the originals Cooperative of all assumption, modification, consolidation or extension agreements, the interests of the mortgagee with evidence of recording thereon, or certified true copies of any document sent for recordationrespect to the related Cooperative Loan;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"Security Agreement;
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RAMP Series 2004-Sl3 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the applicable Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blankblank (or, in the case of the Goldman Conduit Mortgage Loans, in form and substance acceptable for recording or if the Mortgage is to be recorded, assigned to the Purchaser), unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgagepersonal endorsement, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If surety and/or guaranty agreements executed in connection with any all non individual Mortgage LoanLoans (corporations, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagepartnerships, the Responsible Party shall deliver or cause to be delivered to the Custodiantrusts, a photocopy of such Mortgageestates, together with etc. (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageif any);
(iv) the related original Mortgage and evidence of its recording or a certified copy of the Mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified copies in either case necessary to show a complete chain of title from the original mortgagee to the seller and evidencing recording; provided, that, except in the case of the Goldman Conduit Mortgage Loans, the assignment may be in the xxxx xf a blanket assignment or assignments, a copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or extension agreementsagreements or certified copies thereof, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) if required to maintain the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion lien of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only mortgage or if otherwise required, or, if recordation is either necessary under applicable law not required, an original or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments copy of the Mortgage with evidence of recording thereonagreement; provided, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgagethat, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording officeGoldman Conduit Mortgage Loans, an officer's certification original with evidence of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment recorxxxx thereon is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentalways required;
(vii) if applicable to the files held by the applicable Custodian, an original or copy of a title insurance policy or evidence of primary mortgage guaranty insurance or certificate of insurance, if applicabletitle;
(viii) to the extent applicable, an original lender's title policy insurance or other evidence power of title such as a copy of the preliminary title commitment, or a copy thereof; andattorney;
(ix) any for each Mortgage Loan (if applicable to the files held by the applicable Custodian) with respect to which the Mortgagor's name as it appears on the note does not match the borrower's name on the Mortgage Loan Schedule, one of the following: the original of the assumption agreement, or a certified copy thereof, in either case with evidence of recording thereon if required to maintain the lien of the mortgage or if otherwise required, or, if recordation is not so required, an original or copy of such assumption agreement;
(x) if applicable to the files held by the applicable Custodian, a security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Custodial File including all items as set forth in the applicable Servicing Agreement to the extent in the possession of the Depositor or the Depositor's Agents. The Depositor shall deliver or cause each Responsible Party to the deliver to each Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing applicable Sale Agreement, the Responsible Party may forward to the applicable Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing applicable Sale Agreement. All such mortgage documents held by the Custodian Custodians as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Custodians Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. On the Closing Date, the Depositor shall provide a written request to each Responsible Party to submit the Assignments of Mortgage for recordation, at the Responsible Party's expense, pursuant to the applicable Sale Agreement. Each Custodian shall deliver the Assignment of Mortgages to be submitted for recordation to the applicable Responsible Party upon receipt of a written request for release in standard and customary form as set forth in Exhibit L, Exhibit L-1, Exhibit L-2 or Exhibit L-3, as applicable. On or xxxxx xx xxx Xxosing Date, the Depositor shall deliver to the Custodians and the Master Servicer a copy of the Mortgage Loan Schedule in electronic, machine readable medium in a form mutually acceptable to the Depositor, the applicable Custodian, the Master Servicer and the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within the time period and in the manner specified in the applicable Sale Agreement, the Trustee shall take or cause to be taken such remedial actions under the Sale Agreement against the applicable Responsible Party as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the applicable Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the applicable Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the applicable Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAA Home Equity Trust 2006-16" and Deutsche Bank is hereby appointed as Trustee in accordance with the provisions of this Agreement.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSAA Home Equity Trust 2006-16)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of the Cut-off Date). In connection with such transfer and assignment, the Company does hereby deliver to the Trustee the Certificate Policy (as defined in the Series Supplement), if any. The Company, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fundthat is either (i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
(b) In connection with the transfer such assignment, except as set forth in Section 2.01(c) and assignment of each Mortgage Loansubject to Section 2.01(d) below, the Depositor has delivered Company does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) (I) with respect to each Mortgage Loan so assigned:assigned (other than a Cooperative Loan):
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or a copy of the Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, an original Mortgage, Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy assignment with evidence of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageindicated thereon;
(iv) The original recorded assignment or assignments of the originals Mortgage showing an unbroken chain of all assumptiontitle from the originator thereof to the Person assigning it to the Trustee (or to MERS, modification, consolidation or extension agreements, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recording thereonrecordation noted thereon or attached thereto, or certified true copies a copy of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law such assignment or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any any, relating to such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage Mortgage Loan or a copy of such intervening assignment of mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, each modification, consolidation assumption agreement or extension of a Mortgage Loan approved by the Responsible Party, in accordance preferred loan agreement. and (II) with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as respect to each Mortgage Cooperative Loan shall constitute the "Custodial File."so assigned:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RFMSI Series 2004-S5 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of October 2004); (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fundthat is either (i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, except as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian that is the duly appointed agent of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the appropriate public office for real property records the Assignment referred to in clause(iii) of Section 2.01(b), except (a) in states where, in the Opinion of Counsel acceptable to the Trustee and the Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iiii), (iv) and (v) that may be delivered as a copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, 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 a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note and Mortgage, and any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RAMP Series 2004-Rs10 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sellstransfer, transfersassign, assigns, sets set over and otherwise conveys convey to the Trustee without recourse for the benefit of the Certificateholders, without recourse, Certificateholders and the Certificate Insurer all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage LoanDepositor, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee including any security interest therein for the benefit of the Certificateholders Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Unaffiliated Seller's Agreement, and all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal received by the Depositor or the Servicer on or after the Cut-off Date with respect to the Mortgage Loans. In connection with such transfer and assignment, the Depositor will cause the Seller to deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan (a "Mortgage File") so transferred and assigned:
(i) the original Mortgage Note, endorsed in the following form: "Pay to the order of First Union National Bank, as Trustee for the registered holders of Emergent Home Equity Loan Pass-Through Certificates, Series 1997-2, without recourse in blank by the last endorseerecourse", including with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the last endorseePerson so endorsing to the Trustee;
(ii) The original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon, and the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon on or, if such Mortgage or prior to power of attorney has been submitted for recording but has not been returned form the Closing Date because of a delay caused by the applicable public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgageis not otherwise available, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage or power of attorney, as the case may be, certified by the title company, escrow agent, or closing attorney Servicer to be a true and complete copy of the original submitted for recording with the recorded Mortgage will original to be promptly delivered by the Servicer to the Custodian upon Trustee promptly after receipt thereof thereof;
(iii) an original Assignment of the Mortgage executed in the following form: "First Union National Bank, as Trustee for the registered holders of Emergent Home Equity Loan Pass-Through Certificates, Series 1997-2";
(iv) the original recorded Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the Responsible Party; or immediately preceding clause (iiiii) in or, if any such Assignment has been submitted for recording but has not been returned from the case of a Mortgage where a applicable public recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording officenot otherwise available, a copy of such Mortgage Assignment certified by such public recording office or by the title insurance company that issued the title policy Servicer to be a true and complete copy of the original submitted for recording with the recorded Mortgage;
(iv) original to be delivered by the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordationServicer to the Trustee promptly after receipt thereof;
(v) the original Assignment or copies of Mortgage for each Mortgage Loanassumption, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only modification, written assurance or substitution agreement, if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";any; and
(vi) originals the original lender's title insurance policy, together with all endorsements or certified true copies riders that were issued with or subsequent to the issuance of documents sent for recordation of all intervening assignments such policy, insuring the priority of the Mortgage with evidence of recording thereonas a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or if 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.
(b) The Depositor shall cause the Seller to promptly (and in no event later than thirty Business Days following the Closing Date) 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(a)(iii) and (iv) above. In the event that any such intervening assignment 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 Seller 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(a)(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 has been lost or if (y) such public recording office retains has retained the original recorded assignments of mortgagesuch document, the Responsible Party obligations of the Depositor to cause the Seller to deliver such documents shall deliver or cause be deemed to be delivered satisfied upon (1) delivery to the Custodian, Trustee of a photocopy copy of each such intervening assignment, together with (A) document certified by the Seller in the case of a delay caused by (x) above or the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched to the appropriate applicable public recording office for recordation and that such original recorded intervening assignment in the case of mortgage or a copy of such intervening assignment of mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy (y) above to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered that was submitted for recording and (2) if such copy is certified by the Seller, delivery to the Custodian Trustee promptly upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains either the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment document certified by such the applicable public recording office to be a true and complete copy of the original recorded intervening assignment;
original. Notice shall be provided to the Trustee, the Certificate Insurer and the Rating Agencies by the Seller if delivery pursuant to clause (vii2) above will be made more than 180 days after the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) Closing Date. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(a)(vi) above, the Depositor shall cause the Seller to deliver to the Trustee, promptly after receipt thereof, the original lender's title insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagepolicy. The Depositor shall cause the Seller to deliver to the Custodian the applicable recorded document Trustee promptly upon receipt from 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.
(d) All original documents relating to the respective recording office but Mortgage Loans that are not delivered to the Trustee are and shall be held by or on behalf of the Seller, the Depositor or the Servicer, as the case may be, in no trust for the benefit of the Trustee on behalf of the Certificateholders and the Certificate Insurer. In the event later than 240 days from the Closing Date. From time to time, that any such original document is required pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward terms of this Section to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension be a part of a Mortgage Loan approved File, such document shall be delivered promptly to the Trustee. Any such original document delivered to or held by the Responsible Party, in accordance with Depositor or the Seller 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 Depositor herewith delivers to the Trustee an executed copy of the Unaffiliated Seller's Warranties and Servicing Agreement. All such mortgage documents held by In addition to the Custodian as foregoing, the Depositor shall cause the Certificate Insurer to each Mortgage Loan shall constitute deliver the "Custodial FilePolicy to the Trustee for the benefit of the Certificateholders."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.0003% of the Mortgage Notes for which there is a lost note affidavit and the copy of the Mortgage Note, endorsed without recourse in blank by the last endorsee, including ) bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised by the Depositor that state law so allows;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying (or certified by the title company, escrow agent, or closing attorney) stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) except with respect to each MERS Designated Mortgage Loan, the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments Assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments Assignments of mortgageMortgage, the Responsible Party shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying (or certified by the title company, escrow agent, or closing attorney) stating that such intervening assignment Assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment Assignment of mortgage Mortgage or a copy of such intervening assignment Assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original or duplicate lender's title policy and any riders thereto or, any one of primary mortgage guaranty insurance an original title binder, an original or certificate copy of insurancethe preliminary title report or an original or copy of the title commitment, if applicableand if, copies then certified by the title company;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided); and
(ix) original powers of attorney, if applicable, with evidence of recording thereon, if required. The Depositor Each Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a lost note affidavit as of the Closing Date. In the event, for purposes of the Closing Date, one or more lost note affidavits are provided to cover multiple missing Mortgage Notes, the Responsible Party shall deliver to the Custodian Trustee the applicable individual lost note affidavits within ten (10) Business Days of the Closing Date. If the Responsible Party fails to deliver the required individual lost note affidavits within the specified period of time, the Trustee shall notify the Responsible Party to take such remedial actions, including, without limitation, the repurchase by the Responsible Party of such Mortgage Loan within 30 days of the Closing Date. The Responsible Party shall deliver to the Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 150 days from the Closing Date. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward shall forward, with respect to the Custodian Mortgage Loans, to the Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing this Agreement. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Responsible Party shall deliver to the Trustee Assignments of Mortgages, in blank, for each Mortgage Loan (except with respect to each MERS Designated Mortgage Loan). The Responsible Party shall cause the Assignments of Mortgage with completed recording information to be provided to the Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the fully completed Assignments of Mortgages in recordable form, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Responsible Party, at no expense to the Trust Fund, the Trustee or the Depositor in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned by the Responsible Party at the Responsible Party's expense to "Deutsche Bank National Trust Company as trustee under the Pooling and Servicing Agreement dated as of March 1, 2003, GSAMP Trust 2003-FM1." In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Responsible Party shall promptly prepare a substitute assignment to cure such defect and thereafter cause each such assignment to be duly recorded. On or prior to the Closing Date, the Depositor shall deliver to the Trustee a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee within 90 days following the Closing Date, and in the event that the Responsible Party does not cure such failure within 30 days of discovery of receipt of written notification of such failure from the Depositor, the related Mortgage Loan shall, upon the request of the Depositor, be repurchased by the Responsible Party at the price and in the manner specified in Section 2.03. The foregoing repurchase obligation shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the Responsible Party confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the Trustee prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAMP Trust 2003-FM1" and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Mort Pass THR Cert Ser 2003-Fm1)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans on or before the Cut-off Date).
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loan, this Agreement the Depositor has Company delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Policy, and except as set forth in Section 2.01(c) below, the Company does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section): (I) with respect to each Mortgage Loan so assigned:assigned (other than a Cooperative Loan):
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee;
(ii) The original Assignment Mortgage with evidence of Mortgage in blank, unless recording indicated thereon or a copy of the Mortgage Loan is a MERS Loancertified by the public recording office in which such Mortgage has been recorded;
(iii) An original Assignment of the original Mortgage, Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused such assignment certified by the public recording office where in which such Mortgage assignment has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the recorded;
(iv) The original recorded Mortgage, assignment or assignments of the Responsible Party shall deliver or cause to be delivered Mortgage showing an unbroken chain of title from the originator thereof to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched Person assigning it to the appropriate public recording office for recordation and that the original recorded Mortgage Trustee or a copy of such assignment or assignments of the Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public recording office retains the original recorded Mortgage in which such assignment or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordationassignments have been recorded;
(v) the The original Assignment of Mortgage for each Mortgage Loanmodification, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only assumption agreement or preferred loan agreement, if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified any, relating to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the such Mortgage Loan was acquired or a copy of each modification, assumption agreement or preferred loan agreement certified by the Responsible Party public recording office in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";which such document has been recorded; and
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of With respect to any High Cost Loan, the notice to assignees that the Mortgage with evidence of recording thereonLoan is subject to special truth in lending rules, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together extent required by applicable law. and (II) with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as respect to each Mortgage Cooperative Loan shall constitute the "Custodial File."so assigned:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Securities Corp)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, together with all rights of the Depositor under the Cap Agreement and the FNBN Agreements (solely insofar as such FNBN Agreements relate to the FNBN Mortgage Loans).
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised by the Depositor that state law so allows;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote (if any);
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party or FNBN, as applicable, (to the extent that it has not previously delivered the same to the Purchaser or the Trustee) shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying or FNBN, as applicable, or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible PartyParty or FNBN, as applicable; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreementsagreements (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party or FNBN, as applicable, (to the extent it has not previously delivered the same to the Purchaser or the Trustee) shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying or FNBN, as applicable, or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible PartyParty or FNBN, as applicable; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original or duplicate lender's title policy and any riders thereto or, any one of primary mortgage guaranty insurance an original title binder, an original or certificate copy of insurancethe preliminary title report or an original or copy of the title commitment, if applicableand if, copies then certified by the title company;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided); and
(ix) the original PMI Policy, if applicable. The Depositor shall use its reasonable efforts to assist the Trustee and the Servicer in enforcing the obligations of FNBN under the FNBN Agreements. The Depositor shall deliver to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward shall forward, with respect to the Custodian Responsible Party Mortgage Loans, to the Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of this Agreement. Pursuant to the Master Seller's Warranties and Servicing FNBN Purchase Agreement, FNBN has a similar obligation to forward additional documents. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Trustee Assignments of Mortgages, in blank, for each Mortgage Loan. The Depositor shall cause the Assignments of Mortgage with completed recording information to be provided to the Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the fully completed Assignments of Mortgages in recordable form, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Depositor, at no expense to the Trust Fund, the Trustee or the Responsible Party in the appropriate public office for real property records, each Assignment referred to in Section 2.01(b)(v). Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be completed and submitted for recording with respect to any Mortgage Loan if the Trustee and each Rating Agency has received an opinion of counsel, satisfactory in form and substance to the Trustee and each Rating Agency, to the effect that the recordation of such Assignments in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned at the Depositor's expense to "Deutsche Bank National Trust Company as trustee under the Pooling and Servicing Agreement dated as of November 1, 2002, GSAMP Trust 2002-HE." In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Depositor, if the assignment is lost, or, with respect to the Responsible Party Mortgage Loans, the Responsible Party, if there is a defect in the form of assignment, shall promptly prepare a substitute assignment to cure such defect and thereafter cause each such assignment to be duly recorded. If there is such a defect with respect to an FNBN Mortgage Loan, the Trustee shall take such actions, with the Depositor's consent, to enforce the rights of the Trust as "Purchaser" under Subsection 7.03 of the FNBN Purchase Agreement. On or prior to the Closing Date, the Depositor shall deliver to the Trustee a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee within the time period and in the manner specified in the Purchase Agreements, the Trustee shall notify the Depositor and the Depositor shall take or cause to be taken such remedial actions under the Purchase Agreements against the Responsible Party or FNBN, as applicable, as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the Responsible Party or FNBN, as applicable, of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party or FNBN, as applicable, cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Responsible Party or FNBN, as applicable, shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the Responsible Party or FNBN, as applicable, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the Trustee prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAMP Trust 2002-HE" and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Mort Pa Th Ce Se 2002-He)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.01% of the Mortgage Notes for which there is a lost note affidavit and the copy of the Mortgage Note, endorsed without recourse in blank by the last endorsee, including ) bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed in the name of the last endorsee. To the extent that there is no room on the face any Mortgage Note for an endorsement, the endorsement may be contained on an allonge, unless state law does not so allow and the Trustee is advised by the Depositor that state law does not so allow;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (iA) in the case of a delay caused by the public recording office, an officer's certification certificate of the Responsible Party certifying Party, or evidence of certification on the face of such photocopy of such Mortgage, or certified by the title company, escrow agent, or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Party; or (iiB) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreementsagreements (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) except with respect to each MERS Designated Mortgage Loan, the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
recordable form; (vi) the originals or certified true copies of documents sent for recordation of all intervening assignments Assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments Assignments of mortgageMortgage, the Responsible Party (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification certificate of the Responsible Party certifying Party, or evidence of certification on the face of such photocopy of such intervening assignment, or certified by the title company, escrow agent, or closing attorney stating that such intervening assignment Assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment Assignment of mortgage Mortgage or a copy of such intervening assignment Assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible Party; , or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ff2)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on each Mortgage Loan on or before the Due Date in the month of the Cut-off Date). The Mortgage Loans that from time to time constitute part of the Trust FundFund shall be divided into two separate sub-trusts, one for Loan Group I and one for Loan Group II.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loan, this Agreement the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Policies, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, 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;
(iii) Unless the Mortgage Loan is registered on the MERS(R) Systems, an original Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment certified by the public recording office in which such assignment has been recorded;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator thereof to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage certified by the public recording office in which such assignment or assignments have been recorded; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan or a copy of each modification, assumption agreement or preferred loan agreement certified by the public recording office in which such document has been recorded.
(c) The Depositor may, in lieu of delivering the documents set forth in Section 2.01(b)(iv) and (v) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders and the Insurer until such time as is set forth below. Within ten Business Days following the earlier of (i) the receipt of the original of each of the documents or instruments set forth in Section 2.01(b)(iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(iv) and (v) which has been delivered to it by the Depositor.
(d) In the event that in connection with any Mortgage Loan the Depositor cannot deliver the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof certified by the public recording office) with evidence of recording thereon or a certified true concurrently with the execution and correct copy delivery of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date this Agreement solely because of a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement, as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a true and correct photocopy of such Mortgage, together assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the appropriate public office for real property records the Assignment referred to in clause (iii) of Section 2.01(b), except (a) in states where, in the opinion of counsel acceptable to the Trustee, the Insurer and the Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan against the claim of any subsequent transferee or any successor to or creditor of the Depositor or the originator of such Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successors and assigns. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, on or prior to the Closing Date, 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 and the Insurer by including (i) or deleting, in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code appropriate to identify the Trustee in the field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b) the code appropriate to identify the Series 2000-KS4 Certificates in the field "Pool Field" which identifies the series of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(e) It is intended that the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held conveyances by the Custodian Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be and be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 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 with respect to each Mortgage Loan Loan, the Mortgage Notes, the Mortgages, (B) any related insurance policies and all other documents in the related Mortgage Files, (C) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (D) any and all general intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, negotiable documents, goods, letters of credit, advices of credit, certificated securities or chattel paper shall constitute be deemed to be "possession by the "Custodial Filesecured party," or possession by a purchaser for purposes of perfecting the security interest pursuant to the Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Section 9-305, and 9-115 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, securities intermediaries, bailees or agents of, or persons holding for (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officer's Certificate of the Depositor, with a copy delivered to the Insurer, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by (1) any change of name of Residential Funding, the Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Securities Corp)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, together with all rights of the Depositor under the Responsible Party Agreements and the Responsible Party Servicing Agreement (solely insofar as the Responsible Party Agreements and the Responsible Party Servicing Agreement relate to the Mortgage Loans), and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.05% of the Mortgage Notes for which there is a lost note affidavit and the copy of the Mortgage Note, endorsed without recourse in blank by the last endorsee, including ) bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised by the Depositor that state law so allows;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the applicable Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the applicable Responsible Party (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (iA) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the applicable Responsible Party certifying (or certified by the title company, escrow agent, or closing attorney), stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the applicable Responsible Party; or (iiB) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreementsagreements (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) except with respect to each MERS Designated Mortgage Loan, the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments Assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments Assignments of mortgageMortgage, the applicable Responsible Party (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the applicable Responsible Party certifying (or certified by the title company, escrow agent, or closing attorney), stating that such intervening assignment Assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment Assignment of mortgage Mortgage or a copy of such intervening assignment Assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the applicable Responsible Party; , or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original or duplicate lender's title policy and any riders thereto or, any one of primary mortgage guaranty insurance an original title binder, an original or certificate copy of insurancethe preliminary title report or an original or copy of the title commitment, if applicableand if, copies then certified by the title company;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided); and
(ix) original powers of attorney, if applicable, with evidence of recording thereon, if required. The Depositor shall use reasonable efforts to assist the Trustee and the applicable Servicer in enforcing the obligations of the Responsible Parties under the Responsible Party Agreements and the Responsible Party Servicing Agreement. Each Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a lost note affidavit as of the Closing Date. In the event, for purposes of the Closing Date, one or more lost note affidavits are provided to cover multiple missing Mortgage Notes, the Depositor, shall use reasonable efforts to cause the applicable Responsible Party to deliver to the Custodian Trustee the applicable individual lost note affidavits within ten (10) Business Days of the Closing Date. If the applicable Responsible Party fails to deliver the required individual lost note affidavits within the specified period of time, the Trustee shall notify such Responsible Party to take such remedial actions, including, without limitation, the repurchase by the applicable Responsible Party of such Mortgage Loan within 30 days of the Closing Date. The Depositor shall use reasonable efforts to cause each Responsible Party to deliver to the Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 150 days from the Closing Date. From time If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to time, pursuant to the Master Seller's Warranties be prepared or delivered and Servicing Agreementinstead, the applicable Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trust 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 Depositor shall use reasonable efforts to cause each Responsible Party may to forward to the Custodian Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the such Responsible Party, Party in accordance with the terms of the Master Seller's Warranties and Servicing Agreementapplicable Responsible Party Agreements. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall use reasonable efforts to cause each Responsible Party to deliver to the Trustee Assignments of Mortgages, in blank, for each applicable Mortgage Loan (except with respect to each MERS Designated Mortgage Loan). The Depositor shall use reasonable efforts to cause each Responsible Party to cause the Assignments of Mortgage with completed recording information to be provided to the related Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the related Servicer of the fully completed Assignments of Mortgages in recordable form, the related Servicer shall promptly submit or cause to be submitted for recording, at the expense of the applicable Responsible Party pursuant to the applicable Purchase Agreement, at no expense to the Trust Fund, the Trustee or the Depositor in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note or (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan. If the Assignment of Mortgage is to be recorded, the Depositor shall use reasonable efforts to cause the applicable Responsible Party to assign at such Responsible Party's expense, pursuant to the applicable Purchase Agreement to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of June 1, 2004, GSAA Home Equity Trust 2004-5." If there is such a defect with respect to a Mortgage Loan, the Trustee shall take such actions, with the Depositor's consent, to enforce the rights of the Trust as "Purchaser" under Section 6.03 of the applicable Purchase Agreement. On or prior to the Closing Date, the Depositor shall deliver to the Trustee and each Servicer a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor, each Servicer and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Trustee and each Servicer. In the event, with respect to any Mortgage Loan, that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee within 180 days of the applicable Original Purchase Date as specified in the applicable Purchase Agreement, the Trustee shall notify the Depositor and the Depositor shall take or cause to be taken such remedial actions under the applicable Purchase Agreement as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the applicable Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the applicable Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the applicable Responsible Party confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the applicable Responsible Party shall be deemed to have been satisfied upon delivery by the applicable Responsible Party to the Trustee prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAA Home Equity Trust 2004-5" and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans and the Responsible Party Agreements) pursuant to Section 2.01(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gsaa Home Equity Trust 2004-5)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans on or after the Cut-off Date.
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, except as set forth in Section 2.01(c) below, the Depositor has delivered Company does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments with respect to each Mortgage Loan so assigned:(or copies thereof as permitted by this Section):
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage with evidence of Mortgage in blank, unless recording indicated thereon or a copy of the Mortgage Loan is a MERS Loancertified by the public recording office in which such Mortgage has been recorded;
(iii) An original Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment certified by the public recording office in which such assignment has been recorded;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator thereof to the Person assigning it to the Trustee or a copy of such assignment or assignments of the Mortgage certified by the public recording office in which such assignment or assignments have been recorded; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan or a copy of each modification, assumption agreement or preferred loan agreement certified by the public recording office in which such document has been recorded.
(c) The Company may, in lieu of delivering the documents set forth in Section 2.01(b)(iv) and (v) to the Trustee or the Custodian or Custodians, deliver such documents to the [TPW: NY01:613641.4] 16069-00420 10/29/97 10:50PM 29 Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth below. Within ten Business Days following the earlier of (i) the receipt of the original of each of the documents or instruments set forth in Section 2.01(b)(iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(iv) and (v) which has been delivered to it by the Company. Every six months after the Closing Date, for so long as the Master Servicer is holding documents pursuant to this Section 2.01(c), the Master Servicer shall deliver to (i) the Trustee and (ii) each Custodian a report setting forth the status of the documents which it is holding pursuant to this Section 2.01(c).
(d) In the event that in connection with any Mortgage Loan the Company cannot deliver the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof certified by the public recording office) with evidence of recording thereon or a certified true concurrently with the execution and correct copy delivery of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date this Agreement solely because of a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Company shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a true and correct photocopy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Company shall as soon as practicable cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation real property records the Assignment referred to in clause (iii) of Section 2.01(b), except in states where, in the opinion of counsel acceptable to the Trustee and that the original recorded Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan against the claim of any subsequent transferee or a copy any successor to or creditor of the Company or the originator of such Mortgage certified by Loan. If any Assignment is lost or returned unrecorded to the title companyCompany because of any defect therein, escrow agentthe Company shall prepare a substitute Assignment or cure such defect, or closing attorney as the case may be, and cause such Assignment to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, accordance with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information)this paragraph. The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage Company shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall promptly deliver or cause to be delivered to the Custodian, a photocopy of Trustee or the respective Custodian such intervening assignment, together with Mortgage or Assignment (A) in the case of a delay caused or copy thereof certified by the public recording office, an officer's certification ) with evidence of recording indicated thereon upon receipt thereof from the Responsible Party certifying that such intervening assignment of mortgage has been dispatched to the appropriate public recording office for recordation and or from the related Subservicer. Any of the items set forth in Section 2.01(b) that such original recorded intervening assignment of mortgage or may be delivered as a copy of such intervening assignment of mortgage certified rather than the original may be delivered in microfiche form.
(e) It is intended that the conveyances by the escrow agent, or closing attorney or Company to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertified REMIC I Regular Interests provided for in Section 2.06 be construed as a sale by the title insurance company Company to the Trustee of [TPW: NY01:613641.4] 16069-00420 10/29/97 10:50PM 30 the Mortgage Loans and the Uncertificated REMIC I Regular Interests for the benefit of the Certificateholders. Further, it is not intended that issued the title policy any such conveyance be deemed to be a true and complete copy pledge of the original recorded intervening assignment of mortgage will be promptly delivered Mortgage Loans and the Uncertificated REMIC I Regular Interests by the Company to the Custodian upon receipt thereof 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Responsible Party; 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 related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, all amounts payable pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, Loans in accordance with the terms thereof, (C) the Uncertificated REMIC I Regular Interests and (D) any and all general intangibles consisting of, arising from or relating to any of the Master Sellerforegoing, and 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 Residential Funding's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A), (B), (C) and (D) granted by Residential Funding to the Company pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Section 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, at the Company's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, the Uncertificated REMIC I Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Company shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and the Trustee shall forward for filing, [TPW: NY01:613641.4] 16069-00420 10/29/97 10:50PM 31 or shall cause to be forwarded for filing, at the expense of the Company, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated REMIC I Regular Interests, as evidenced by an Officer's Certificate of the Company, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Company or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Company, (3) any transfer of any interest of Residential Funding or the Company in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileCompany in any Uncertificated REMIC I Regular Interest."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Funding Mortgage Securities Ii Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of May 2001); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, except as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Person stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement;
(c) The Depositor may, in lieu of delivering the documents set forth in Section 2.01(b)(iv) and (v) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth below. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(iv) and (v) which has been delivered to it by the Depositor.
(d) In connection with any Mortgage Loan, if the Depositor cannot deliver the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause(iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by Trustee and the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereonrecord solely as nominee for Residential Funding and its successors and assigns. If any Assignment, Form UCC-3 or Form UCC-1, as applicable, is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as applicable, or if any cure such intervening assignment has not been returned from defect, as the applicable recording office or has been lost or if case may be, and cause such public recording office retains the original Assignment to be recorded assignments of mortgage, the Responsible Party in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or assignment, Form UCC-3 or Form UCC-1, as applicable, (or copy thereof as permitted by Section 2.01(b)) with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, a photocopy as contemplated by Section 2.02. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(e) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Section 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the applicable Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blankblank (or, in the case of the Goldman Conduit Mortgage Loans, in form and substance acceptable for recording or if the Mortgage is to be recorded, assigned to the Purchaser), unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgagepersonal endorsement, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If surety and/or guaranty agreements executed in connection with any all non individual Mortgage LoanLoans (corporations, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagepartnerships, the Responsible Party shall deliver or cause to be delivered to the Custodiantrusts, a photocopy of such Mortgageestates, together with etc. (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageif any);
(iv) the related original Mortgage and evidence of its recording or a certified copy of the mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified copies in either case necessary to show a complete chain of title from the original mortgagee to the seller and evidencing recording; provided, that, except in the case of the Goldman Conduit Mortgage Loans, the assignment may be in the form of a blanket assignment or assignments, a copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or extension agreementsagreements or certified copies thereof, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) if required to maintain the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion lien of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only mortgage or if otherwise required, or, if recordation is either necessary under applicable law not required, an original or commonly required by private institutional mortgage investors copy of the agreement; provided, that, in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments case of the Goldman Conduit Mortgage Loans, an original with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment thereon is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentalways required;
(vii) if applicable to the files held by the applicable Custodian, an original or copy of a title insurance policy or evidence of primary mortgage guaranty insurance or certificate of insurance, if applicabletitle;
(viii) to the extent applicable, an original lender's title policy insurance or other evidence power of title such as a copy of the preliminary title commitment, or a copy thereof; andattorney;
(ix) any for each Mortgage Loan (if applicable to the files held by the applicable Custodian) with respect to which the Mortgagor's name as it appears on the note does not match the borrower's name on the Mortgage Loan Schedule, one of the following: the original of the assumption agreement or a certified copy thereof;
(x) if applicable to the files held by the applicable Custodian, a security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Custodial File (as defined below) including all items as set forth in the applicable Servicing Agreement to the extent in the possession of the Depositor or the Depositor's Agents. The Depositor shall deliver or cause each Responsible Party to the deliver to each Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. 41 From time to time, pursuant to the Master Seller's Warranties and Servicing applicable Sale Agreement, the Responsible Party may forward to the applicable Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing applicable Sale Agreement. All such mortgage documents held by the Custodian Custodians as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Custodians Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. On the Closing Date, the Depositor shall provide a written request to each Responsible Party to submit the Assignments of Mortgage for recordation, at the Responsible Party's expense, pursuant to the applicable Sale Agreement. Each Custodian shall deliver the Assignment of Mortgages to be submitted for recordation to the applicable Responsible Party upon receipt of a written request for release in standard and customary form as set forth in Exhibit L-1, L-2, L-3, or L-4, as applicable. On or prior to xxx Xxxxxxx Xxxx, xxx Depositor shall deliver to the Custodians and the Master Servicer a copy of the Mortgage Loan Schedule in electronic, machine readable medium in a form mutually acceptable to the Depositor, the applicable Custodian, the Master Servicer and the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within the time period and in the manner specified in the applicable Sale Agreement, the Trustee shall take or cause to be taken such remedial actions under the Sale Agreement against the applicable Responsible Party as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the applicable Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the applicable Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an Officer's Certificate of an officer of the applicable Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAA Home Equity Trust 2006-18" and Deutsche Bank is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the Mortgage Loans included in the Trust is (a) covered by the Home Ownership and Equity Protection Act of 1994, or (b) considered a "high cost home," "threshold," "predatory" or "covered" loan (excluding "covered home loans" as defined under clause (1) of the definition of "covered home loans" in the New Jersey Home Ownership Security Act of 2002) under applicable state, federal or local laws.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSAA Home Equity Trust 2006-18)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the applicable Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgagepersonal endorsement, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If surety and/or guaranty agreements executed in connection with any all non individual Mortgage LoanLoans (corporations, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagepartnerships, the Responsible Party shall deliver or cause to be delivered to the Custodiantrusts, a photocopy of such Mortgageestates, together with etc. (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageif any);
(iv) the related original Mortgage and evidence of its recording or a certified copy of the Mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified copies in either case necessary to show a complete chain of title from the original mortgagee to the seller and evidencing recording; provided that except in the case of the Goldman Conduit Mortgage Loans, the assignment may be in the form of a blanket assignment or assignments, a copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or extension agreementsagreements or certified copies thereof, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) if required to maintain the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion lien of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only mortgage or if otherwise required, or, if recordation is either necessary under applicable law not required, an original or commonly required by private institutional mortgage investors copy of the agreement; provided that in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments case of the Goldman Conduit Mortgage Loans, an original with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment thereon is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentalways required;
(vii) if applicable to the files held by the related Custodian, an original or copy of a title insurance policy or evidence of primary mortgage guaranty insurance or certificate of insurance, if applicabletitle;
(viii) to the extent applicable, an original lender's title policy insurance or other evidence power of title such as a copy of the preliminary title commitment, or a copy thereof; andattorney;
(ix) any for each Mortgage Loan (if applicable to the files held by the related Custodian) with respect to which the Mortgagor’s name as it appears on the note does not match the borrower’s name on the Mortgage Loan Schedule, one of the following: the original of the assumption agreement, or a certified copy thereof, in either case with evidence of recording thereon if required to maintain the lien of the mortgage or if otherwise required, or, if recordation is not so required, an original or copy of such assumption agreement;
(x) if applicable to the files held by the related Custodian, a security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Custodial File including all items as set forth in the applicable Servicing Agreement to the extent in the possession of the Depositor or the Depositor’s Agents. The Depositor shall deliver or cause each Seller to deliver to the applicable Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing applicable Sale Agreement, the Responsible Party Seller may forward to the related Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing applicable Sale Agreement. All such mortgage documents held by the related Custodian as to each Mortgage Loan shall constitute the "“Custodial File."” On or prior to the Closing Date, the Depositor shall deliver to the related Custodian Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. On the Closing Date, the Trustee shall provide a written request to each Seller to submit the Assignments of Mortgage for recordation, at the Seller’s expense, pursuant to the applicable Sale Agreement. The related Custodian shall deliver the Assignment of Mortgages to be submitted for recordation to the applicable Seller upon receipt of a written request for release in standard and customary form as set forth in Exhibit L. On or prior to the Closing Date, the Depositor shall deliver to each Custodian and the Master Servicer a copy of the Mortgage Loan Schedule in electronic, machine readable medium in a form mutually acceptable to the Depositor, each such Custodian, the Master Servicer and the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the applicable Custodian within the time period and in the manner specified in the applicable Sale Agreement, the Trustee shall take or cause to be taken such remedial actions under the Sale Agreement against the applicable Seller as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the applicable Seller of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Seller cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided that the applicable Seller shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer’s certificate of an officer of the applicable Seller, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Seller shall be deemed to have been satisfied upon delivery by the Seller to the related Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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”) to be known, for convenience, as “GSR Mortgage Loan Trust 2007-OA1” and Deutsche Bank is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the Mortgage Loans included in the Trust is (a) covered by the Home Ownership and Equity Protection Act of 1994, or (b) considered a “high cost home,” “threshold,” “predatory” or “covered” loan (excluding “covered home loans” as defined under clause (1) of the definition of “covered home loans” in the New Jersey Home Ownership Security Act of 2002) under applicable state, federal or local laws.
(e) The Depositor hereby directs the Securities Administrator to execute and deliver the Interest Rate Swap Agreement and to make the representations required therein and authorizes the Securities Administrator to perform its obligations thereunder on behalf of the Supplemental Interest Trust in accordance with the terms of such agreement. The Securities Administrator in its individual capacity shall have no responsibility for any of the undertakings, agreements or representations with respect to the Interest Rate Swap Agreement, including, without limitation, the making of any payments thereunder, all of which shall be the obligations of the Supplemental Interest Trust. The Securities Administrator shall not be required to take notice or be deemed to have notice or knowledge of any Swap Disclosure Event (as defined in the Interest Rate Swap Agreement) unless a Responsible Officer of the Securities Administrator obtains actual knowledge of the occurrence of a Swap Disclosure Event or shall have received written notice thereof from the Depositor. In the absence of such actual knowledge or notice, the Securities Administrator may conclusively assume that no Swap Disclosure Event has occurred.
Appears in 1 contract
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the CertificateholdersCertificateholders and the Class A-2 Certificate Insurer, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders and the Class A-2 Certificate Insurer the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage NoteNote bearing all intervening endorsements, endorsed "Pay to the order of _____________, without recourse recourse" and signed in blank the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised in writing by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator Originator (pursuant to the last endorseePurchase Agreement) that state law so allows;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing related Delivery Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party Trustee shall notify the Originator to deliver or cause to be delivered to the CustodianTrustee, as required under the Purchase Agreement, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying Originator or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible PartyOriginator; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered Loan endorsed in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party Trustee shall deliver or cause notify the Originator, to be delivered to deliver, as required under the CustodianPurchase Agreement, a photocopy of such intervening assignment, together with (Ai) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying Originator or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible PartyOriginator; or (Bii) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or attorney's opinion of primary mortgage guaranty title and abstract of title, or, in the event such original title policy is unavailable, a certified true copy of the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor will use its reasonable efforts to assist the Trustee and the Servicers in enforcing the obligations of the Originators under the Purchase Agreements. The Depositor shall deliver cause to be delivered to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing related Delivery Date. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File." No later than thirty (30) Business Days following the later of the related Delivery Date and the date of receipt by the Servicer of the recording information for a Mortgage, the Servicer shall promptly submit or cause to be submitted for recording at the expense of the Originator as required pursuant to the Purchase Agreement and at no expense to the Trust Fund, the Trustee, the Servicer or the Depositor, in the appropriate public office for real property records, each Assignment referred to in Section 2.01(b)(v). 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 (i) if the Trustee and each Rating Agency and the Class A-2 Certificate Insurer have received an opinion of counsel, satisfactory in form and substance to the Trustee and each Rating Agency and the Class A-2 Certificate Insurer, to the effect that the recordation of such Assignments of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note or (ii) if the Rating Agencies have each notified the Depositor in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any LIBOR Certificate to be downgraded or withdrawn (such determination to be made without regard to the Class A-2 Certificate Insurance Policy); provided, however, that the Servicer shall not be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent the Servicer has not received prior knowledge of the act or omission that causes such loss. However, if at any time that clause (i) or (ii) of the preceding sentence is no longer true or if foreclosure proceedings occur against a Mortgaged Property, the Depositor shall notify the Servicer and the Servicer shall record such Assignment of Mortgage at the expense of the Originator. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of October 1, 2002, Morgan Stanley Dean Witter Capital I Inc. Trust 2002-AM3." In the event xxxx axx xxxx Xxxxxxxxxx of Mortgage is lost or returned unrecorded because of a defect therein, the Depositor shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded. On or prior to the Closing Date, the Depositor shall deliver to the Trustee a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Trustee.
(1) Subject to the satisfaction of the conditions set forth in paragraph (ii) below, and upon the Trustee's receipt of a Subsequent Transfer Agreement executed by all other parties thereto, in consideration of the Trustee's delivery on the related Subsequent Transfer Dates to (or upon the order of) the Depositor of all or a portion of the balance of funds in the Pre-Funding Account, the Depositor shall on any Subsequent Transfer Date sell, transfer, assign, set-over and convey to the Trustee without recourse, but subject to terms and provisions of this Agreement, all of the right, title and interest of the Depositor in and to the Subsequent Mortgage Loans, including the outstanding principal of and interest due on such Subsequent Mortgage Loans after the applicable Subsequent Cut-off Date, and all other related assets included or to be included in the Trust Fund with respect thereto. The amount released from the Pre-Funding Account with respect to a transfer of Subsequent Mortgage Loans shall be one-hundred percent (100%) of the aggregate Stated Principal Balances as of the related Subsequent Cut-off Date of the related Subsequent Mortgage Loans so transferred.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Series 2002-Am3)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of December 2003); (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Policy, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian that is the duly appointed agent of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the appropriate public office for real property records the Assignment referred to in clause(iii) of Section 2.01(b), except (a) in states where, in the Opinion of Counsel acceptable to the Trustee, the Insurer and the Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iiii), (iv) and (v) that may be delivered as a copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, 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 a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note and Mortgage, and any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to Wells Fargo, in its capacity as Custodian, with respect to the Custodian on behalf of WMC Mortxxxx Loans, LaSalle with respect to the Decision One Mortgage Loans and to the Trustee with respect to the NC Capital Mortgage Loans, for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage NoteNote bearing all intervening endorsements, endorsed "Pay to the order of _____________, without recourse recourse" and signed (which may be by facsimile signature) in blank the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Note for endorsements, the endorsement may be contained on an allonge, unless the Trustee or applicable Custodian, as applicable, is advised in writing by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from applicable Responsible Party (if required by the originator to applicable Purchase Agreement) or the last endorseeDepositor that state law does not so allow;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote, if any;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the applicable Responsible Party shall deliver or cause to be delivered to the Trustee or applicable Custodian, as applicable, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the applicable Responsible Party, originator, the Depositor, title company, escrow agentcompany or attorney, or closing attorney as applicable, to be a true and complete copy of such Mortgage and shall forward to the Trustee or applicable Custodian, as applicable, such original recorded Mortgage will be promptly delivered to within 14 days following the Custodian upon receipt thereof by the applicable Responsible Party's receipt of such Mortgage from the applicable public recording office; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) the original Assignment of Mortgage for each Mortgage LoanLoan endorsed in blank, which may, except with respect to the WMC Mortgage Loans, be included in form and substance acceptable for recording a blanket assignment or assignments (except for the insertion of the name of the assignee and recording informationwith respect to MERS Designated Mortgage Loans). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereonthereon or a certified true copy of such intervening assignments of Mortgage submitted for recording, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the applicable Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 applicable Responsible Party, originator, Depositor, title company, escrow agentcompany or attorney, or closing attorney or by the title insurance company that issued the title policy as applicable, to be a true and complete copy of such intervening assignment and shall forward to the Trustee or applicable Custodian, as applicable, such original recorded intervening assignment of mortgage will be promptly delivered to within 14 days following the Custodian upon receipt thereof by the applicable Responsible Party's receipt of such from the applicable public recording office; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy, a photocopy of the mortgage title insurance policy, or attorney's opinion of title and abstract of title, or, in the event such title policy is unavailable, a copy of primary mortgage guaranty the related policy binder or commitment for title from the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor applicable Responsible Party shall deliver cause to be delivered to the Custodian Trustee or applicable Custodian, as applicable, the applicable recorded document promptly upon receipt from the respective recording office but office. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no event later than 240 days from Assignment of Mortgage in favor of the Closing DateTrustee will be required to be prepared or delivered and instead, the applicable Servicer shall take all reasonable actions as are necessary at the expense of the applicable Responsible Party to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the applicable Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee or applicable Custodian, as applicable, additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee or applicable Custodian, as applicable, as to each Mortgage Loan shall constitute the "Custodial File". On or prior to the Closing Date, each Responsible Party shall deliver to the applicable Custodian Assignments of Mortgages, in blank, for each Mortgage Loan. The Responsible Parties shall cause the Assignments of Mortgages and complete recording information to be provided to the applicable Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the applicable Servicer of the complete recording information for a Mortgage, the applicable Servicer shall promptly submit or cause to be submitted for recording, at the expense of the applicable Responsible Party as required pursuant to the related Purchase Agreement and at no expense to the Trust Fund, the Trustee, the applicable Servicer, or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Trustee, the Custodians and each Rating Agency have 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan or (iii) if the Rating Agencies have each notified the Depositor in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any LIBOR Certificates to be downgraded or withdrawn; provided, however, that no Servicer shall be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent the applicable Servicer does not have prior knowledge of the act or omission that causes such loss. Unless the Depositor gives the Servicers notice to the contrary, the Depositor is deemed to have given the Servicers notice that the condition set forth in clause (iii) above is applicable. However, with respect to the Assignments of Mortgage referred to in clauses (i) and (ii) above, if foreclosure proceedings occur against a Mortgaged Property, the applicable Servicer shall record such Assignment of Mortgage at the expense of the applicable Responsible Party (and at no expense to such Servicer) as required pursuant to the related Purchase Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of February 1, 2007, Morgan Stanley ABS Capital I Inc. Trust 2007-HE2." In the event that anx xxxx Xxxxxxxent of Mortgage is lost or returned unrecorded because of a defect therein, the applicable Responsible Party shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the applicable Custodian within one year following the date such Mortgage Loan was sold by such Responsible Party to the Sponsor, and in the event that such Responsible Party does not cure such failure within 30 days of discovery or receipt of written notification of such failure from the Depositor, the related Mortgage Loan shall, upon the request of the Depositor, be repurchased by such Responsible Party at the price and in the manner specified in Section 2.03. The foregoing repurchase obligation shall not apply in the event that the applicable Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that such Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of such Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the applicable Responsible Party shall be deemed to have been satisfied upon delivery by the applicable Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof. On or prior to the Closing Date, the Depositor shall deliver to the Trustee and the Custodians, as applicable, a copy of the Data Tape Information in an electronic, machine readable medium in a form acceptable to the Depositor, the Trustee or the Custodians, as applicable.
(c) 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") to be known, for convenience, as "MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-HE2" and Deutsche Bank Natxxxxx Txxxx Xxmpany 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, including without limitation, the representations and warranties set forth in paragraph (aaa) of Schedule IV, paragraph (yy) of Schedule VI and paragraph (aaa) of Schedule VII to this Agreement. The Trust's fiscal year is the calendar year.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans and the Representations and Warranties Agreement) pursuant to Section 2.01(a). The Trustee on behalf of the Trust is hereby directed to enter into the Interest Rate Swap Agreement.
(e) The Depositor shall use reasonable effort to assist the Trustee in enforcing the obligations of the Sponsor under the Representations and Warranties Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2007-He2)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of August 2002); (ii) the Basis Risk Shortfall Reserve Fund Deposit and the Mortgage Insurance Premium Taxes Reserve Fund Deposit; and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Certificate Guaranty Insurance Policy, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or except (iia) in the case of a Mortgage where a public recording office retains the original recorded Mortgage or states where, in the case where a Mortgage is lost after recordation in a public recording office, a copy opinion of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance counsel acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If , the Assignment of Mortgage Certificate Insurer and the Master Servicer, such recording is not required to be recorded, protect the Assignment of Mortgage shall be delivered Trustee's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereonrecord solely as nominee for Residential Funding and its successors and assigns. If any Assignment as applicable, or if any such intervening assignment has not been returned from the applicable recording office or has been is lost or if such public recording office retains returned unrecorded to the original recorded assignments Depositor because of mortgageany defect therein, the Responsible Party Depositor shall prepare a substitute Assignment or cure such defect, as the case may be, and cause such Assignment to be recorded in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note and Mortgage, and (iii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, with a copy delivered to the Certificate Insurer, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Securities Corp)
Conveyance of Mortgage Loans. (a) The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby sellsassign, transferstransfer, assignssell, sets set over and otherwise conveys convey to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule (exclusive of any prepayment fees and late payment charges received thereon) and all other assets included or to be included in the Trust Fund.
Fund for the benefit of the Certificateholders. Such assignment includes all principal and interest received by the Servicer on or with respect to the Mortgage Loans (b) other than payment of principal and interest due on or before the Cut-off Date). In connection with the such transfer and assignment assignment, the Company has caused the Sponsor with respect to each Mortgage Loan, to deliver to, and deposit to or at the direction of the Trustee, as described in the Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with instruments:
(a) With respect to each Mortgage Loan so assignedLoan, other than a Cooperative Loan:
(i) the original Mortgage Note, Note endorsed without recourse to the order of the Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee or in blank by or, with respect to any Mortgage Loan as to which the last endorseeoriginal Mortgage Note has been lost or destroyed and has not been replaced, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorseeLost Note Affidavit;
(ii) The original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on 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 Sponsor or prior to the Closing Date because of a delay caused by the public recording office where in which such original Mortgage has been delivered 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, or, if the original of any such intervening assignment has not yet been returned from the public recording office, a copy of such original intervening assignment certified by the Sponsor or the public recording office in which such original intervening assignment has been recorded;
(v) the original policy of title insurance (or a preliminary title report commitment for title insurance, if the policy is being held by the title insurance company pending recordation of the Mortgage); and
(vi) the original or because such a true and correct copy of any assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loan.
(b) With respect to each Mortgage Loan that is a Cooperative Loan (as indicated on the Mortgage Loan Schedule):
(i) the original Mortgage Note endorsed without recourse to the order of the Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or because destroyed and has not been replaced, a Lost Note Affidavit;
(ii) the original duly executed assignment of Security Agreement to the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or certified copy thereof) with respect to the Security Agreement, and any required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with respect to the security agreement, indicating the Trustee as the assignee of the secured party;
(v) the stock certificate representing the Cooperative Assets allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original intervening assignments, including warehousing assignments, if any, showing, to the extent available, an unbroken chain of the related Mortgage Loan to the Trustee, together with a copy of the related Form UCC-3 with evidence of filing thereon; and
(ix) the original or a true and correct copy of any assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loan. Within 30 days after the Closing Date, the Company shall complete or cause to be completed the Assignments of Mortgage in the name of “Deutsche Bank National Trust Company, as trustee under the Agreement relating to American Home Mortgage Assets LLC, Mortgaged-Backed Pass-Through Certificates, Series 2006-1” (or shall prepare or cause to be prepared new forms of Assignment of Mortgage so completed in the name of the Trustee) for each Mortgage Property in a state, if any, which is specifically excluded from the Opinion of Counsel delivered by the Company to the Trustee and the Custodian, each such assignment shall be recorded in the appropriate public office for real property records, and returned to the Custodian, at no expense to the Trustee or the Custodian. The Sponsor 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 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 Custodian as agent for the Trustee pursuant to clause (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 as agent for the Trustee pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement, the 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 Trustee, the Custodian 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, each assignment shall be submitted for recording by the Sponsor in the manner described above, at no expense to the Trust, the Custodian or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates evidencing at least 25% of the Voting Rights, (ii) the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Sponsor, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Sponsor is not the Master Servicer and with respect to any one assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains the original recorded MortgageMortgage after it has been recorded, the Responsible Party Sponsor shall deliver or cause be deemed to be delivered have satisfied its obligations hereunder upon delivery to the Custodian, a photocopy Custodian as agent for the Trustee of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such 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 as agent for the Trustee because of any defect therein, the Sponsor or AHMC, as the case may be, is required, as described in 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 Sponsor or AHMC, as applicable, shall cause such Assignment to be recorded intervening assignment;
in accordance with this section. 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 (viior deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
code in the field which identifies the specific Trustee and (viiib) the original lender's title policy insurance or other evidence of title such as a copy code in the field “Pool Field” which identifies the series of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed Certificates issued in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver Company further agrees that it will not, and will not permit the Servicer to alter the Custodian the applicable recorded document promptly upon receipt from the respective recording office but codes referenced in no event later than 240 days from the Closing Date. From time this paragraph with respect to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to the Cooperative Loans, the Depositor will, promptly after the Closing Date, cause the related financing statements (if not yet filed) and an assignment thereof from the Depositor to the Trustee to be filed in the appropriate offices. Except as may otherwise expressly be provided herein, none of the Company, the Custodian, the Master Seller's Warranties Servicer, or the Trustee shall (and Servicing Agreementthe 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. All 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. It is, further, not intended that such mortgage 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 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 Custodian as agent for the Trustee or any other agent of the Trustee of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to each 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 shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loan shall constitute Loans and the "Custodial FileREMIC 1 Regular Interests, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Agreement."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the CertificateholdersCertificateholders and the Class A-1 Certificate Insurer, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, together with all rights of the Depositor under the Original Mortgage Loan Seller Agreements and the Sale and Warranties Agreement (solely insofar as such Original Mortgage Loan Seller Agreements and the Sale and Warranties Agreement relate to the Mortgage Loans), and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders and the Class A-1 Certificate Insurer the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 3.00% of the Mortgage Notes for which there is a lost note affidavit and the copy of the Mortgage Note, endorsed without recourse in blank by the last endorsee, including ) together with all riders thereto bearing all intervening endorsements showing a complete chain of endorsement from the originator Original Mortgage Loan Seller to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised by the Depositor that state law so allows;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote (if provided);
(iii) except for up to 5.00% of the Mortgage Loans, the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording together with all riders thereto. If in connection with any Mortgage Loan, the Responsible Party Party, the Original Mortgage Loan Sellers or the Purchaser, as applicable, cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party Party, the Original Mortgage Loan Sellers or the Purchaser, as applicable (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (iA) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying Party, the Original Mortgage Loan Sellers or the Purchaser, as applicable (or certified by the title company, escrow agent, or closing attorney), stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Party, the Original Mortgage Loan Sellers or the Purchaser, as applicable; or (iiB) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) except for up to 1.00% of the Mortgage Loans, the originals of all assumption, modification, consolidation or extension agreementsagreements (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) except for up to 5.00% of the Mortgage Loans and each of the MERS Designated Mortgage Loan, the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) except for up to 5.00% of the Mortgage Loans and each of the originals or certified true copies of documents sent for recordation of all intervening assignments Assignments of Mortgage (if any) evidencing a complete chain of assignment from the Responsible Party, the applicable Original Mortgage Loan Seller or the Purchaser, as applicable (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments Assignments of mortgageMortgage, the Responsible Party Party, the Original Mortgage Loan Sellers or the Purchaser, as applicable (to the extent that it has not previously delivered the same to the Purchaser or the Trustee), shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying Party, the Original Mortgage Loan Sellers or the Purchaser, as applicable (or certified by the title company, escrow agent, or closing attorney), stating that such intervening assignment Assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment Assignment of mortgage Mortgage or a copy of such intervening assignment Assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible Party; , the Original Mortgage Loan Sellers or the Purchaser, as applicable, or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) except for up to 6.00% of the Mortgage Loans, the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original duplicate lender's title policy insurance and any riders thereto or, any one of an original title binder, an original or other evidence of title such as a copy of the preliminary title report or an original or copy of the title commitment, or a copy thereofand if, copies then certified by the title company; and
(ixviii) any a security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor shall use reasonable efforts to assist the Trustee and the Servicer in enforcing the obligations of the Original Mortgage Loan Sellers or the Purchaser under the Original Mortgage Loan Seller Agreements or the Sales and Warranties Agreement, respectively. Each Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a lost note affidavit as of the Closing Date. In the event, for purposes of the Closing Date, one or more lost note affidavits are provided to cover multiple missing Mortgage Notes, the Responsible Party shall deliver (or the Depositor, as applicable, shall deliver or shall use reasonable efforts to cause the Original Mortgage Loan Sellers or the Purchaser, as applicable, to deliver) to the Custodian Trustee the applicable individual lost note affidavits within ten (10) Business Days of the Closing Date. If the Responsible Party, the Depositor, the Original Mortgage Loan Sellers or the Purchaser fail to deliver the required individual lost note affidavits within the specified period of time, the Trustee shall notify the Responsible Party, the Depositor, the Original Mortgage Loan Sellers or the Purchaser, as applicable, to take such remedial actions, including, without limitation, the repurchase by the Responsible Party, the Original Mortgage Loan Sellers or the Purchaser of such Mortgage Loan within 30 days of the Closing Date. The Responsible Party shall deliver (or the Depositor, as applicable, shall deliver or shall use reasonable efforts to cause the Original Mortgage Loan Sellers or the Purchaser, as applicable to deliver) to the Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 150 days from the Closing Date. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may shall forward with respect to the Custodian Responsible Party Mortgage Loans, to the Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyParty in accordance with the terms of this Agreement. The Depositor shall provide or shall use reasonable efforts to cause the Original Mortgage Loan Sellers or the Purchaser, as applicable to forward, with respect to the Original Mortgage Loan Sellers Mortgage Loans or the Remaining Mortgage Loans, to the Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Original Mortgage Loan Sellers or the Purchaser in accordance with the terms of the Master Seller's Original Mortgage Loan Seller Agreements or the Sale and Warranties and Servicing Agreement, as applicable. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Sec Corp Mortgage Pass THR Certs Ser 2003-Sea)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of November 2001).
(b) In connection with the transfer such assignment, except as set forth in Section 2.01(c) below and assignment of each Mortgage Loansubject to Section 2.01(d) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Person stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date because Trustee with evidence of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage indicated thereon or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy assignment with evidence of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageindicated thereon;
(iv) The original recorded assignment or assignments of the originals Mortgage showing an unbroken chain of all assumptiontitle from the originator to the Person assigning it to the Trustee (or to MERS, modification, consolidation or extension agreements, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recording thereonrecordation noted thereon or attached thereto, or certified true copies a copy of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law such assignment or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any any, relating to such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage Loan, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, each modification, consolidation assumption agreement or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."preferred loan agreement;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the each Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blankblank (or, in the case of the Goldman Conduit Mortgage Loans, in form and substance acceptable for recording or if the Mortgage is to be recorded, assigned to the Purchaser), unless the Mortgage Loan is a MERS Loan, and in the case of the SunTrust Mortgage Loans and the Wells Fargo Mortgage Loans, blanket assignments for Mortgage Loans secured by Mortgaged Properties in jurisdictions where permitted by Applicable Law;
(iii) the original Mortgagepersonal endorsement, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If surety and/or guaranty agreements executed in connection with any all non individual Mortgage LoanLoans (corporations, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagepartnerships, the Responsible Party shall deliver or cause to be delivered to the Custodiantrusts, a photocopy of such Mortgageestates, together with etc. (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageif any);
(iv) the related original Mortgage and evidence of its recording or, in certain limited circumstances as set forth in the applicable Servicing Agreement, a certified copy of the mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified copies in either case necessary to show a complete chain of title from the original mortgagee to the seller and evidencing recording; provided, that, except in the case of the Goldman Conduit Mortgage Loans, the assignment may be in the form of a blanket assignment or assignments, a copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or extension agreementsagreements or certified copies thereof, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) if required to maintain the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion lien of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only mortgage or if otherwise required, or, if recordation is either necessary under applicable law not required, an original or commonly required by private institutional mortgage investors copy of the agreement; provided, that, in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments case of the Goldman Conduit Mortgage Loans, an original with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment thereon is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentalways required;
(vii) except with respect to the Countrywide Mortgage Loans, an original or copy of a title insurance policy or evidence of primary mortgage guaranty insurance or certificate of insurance, if applicabletitle;
(viii) to the extent applicable, an original lender's title policy insurance or other evidence power of title such attorney; except in the case of the Goldman Conduit Mortgage Loans, an xxxxxxxl power of attorney or, in limited circumstances as set forth in the applicable Servicing Agreement, a copy of the preliminary title commitment, or a copy thereof; andpower of attorney;
(ix) any for each GreenPoint Mortgage Loan with respect to which the Mortgagor's name as it appears on the note does not match the borrower's name on the mortgage loan schedule, one of the following: the original of the assumption agreement, or a certified copy thereof, in either case with evidence of recording thereon if required to maintain the lien of the mortgage or if otherwise required, or, if recordation is not so required, an original or copy of such assumption agreement;
(x) except with respect to the Countrywide Mortgage Loans, a security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Mortgage File including all items as set forth in the applicable Servicing Agreement to the extent in the possession of the Depositor or the Depositor's Agents. The Depositor shall deliver to the each Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing applicable Sale Agreement, the Responsible Party may forward to the applicable Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing applicable Sale Agreement. All such mortgage documents held by the Custodian Custodians as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Custodians Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. On the Closing Date, the Trustee shall provide a written request to each Responsible Party to submit the Assignments of Mortgage for recordation, at the Responsible Party's expense, pursuant to the applicable Sale Agreement. Each Custodian shall deliver the Assignment of Mortgages to be submitted for recordation to the applicable Responsible Party. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within the time period and in the manner specified in the applicable Sale Agreement, the Trustee shall take or cause to be taken such remedial actions under the Sale Agreement against the applicable Responsible Party as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the applicable Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the applicable Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the applicable Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "GSAA Home Equity Trust 2005-11" and Wachovia Bank, National Association is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the Mortgage Loans included in the Trust is (a) covered by the Home Ownership and Equity Protection Act of 1994, or (b) considered a "high cost home," "threshold," "predatory" or "covered" loan (excluding "covered home loans" as defined under clause (1) of the definition of "covered home loans" in the New Jersey Home Ownership Security Act of 2002) under applicable state, federal or local laws.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSAA Home Equity Trust 2005-11)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the CertificateholdersCertificateholders and the Class IA Insurer, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, together with all rights of the Depositor under the Certificate Cap Agreements (if any), and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(ba) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of Trustee or the Trustee Trust Administrator, as applicable, for the benefit of the Certificateholders and the Class IA Insurer the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed (which may be by facsimile signature) in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised by the Depositor that state law so allows;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) with respect to each Mortgage Loan, the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the Responsible Party Originator cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party Originator (to the extent that it has not previously delivered the same to the Depositor, the Trustee or the Trust Administrator) shall deliver or cause to be delivered to the CustodianTrustee or Trust Administrator, (1) a photocopy of such Mortgage, together with (i) in the case of a delay caused certified by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage Originator (or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney attorney) to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereofrecordation; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut- off Date (other than payments of principal and interest due on the Mortgage Loans on or before the Cut-off Date).
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, except as set forth in Section 2.01(c) below, the Depositor has delivered Company does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) (I) with respect to each Mortgage Loan so assigned:assigned (other than a Cooperative Loan):
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage with evidence of Mortgage in blank, unless recording indicated thereon or a copy of the Mortgage Loan is a MERS Loancertified by the public recording office in which such Mortgage has been recorded;
(iii) An original Assignment of the original Mortgage, Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused such assignment certified by the public recording office where in which such Mortgage assignment has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the recorded;
(iv) The original recorded Mortgage, assignment or assignments of the Responsible Party shall deliver or cause to be delivered Mortgage showing an unbroken chain of title from the originator thereof to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched Person assigning it to the appropriate public recording office for recordation and that the original recorded Mortgage Trustee or a copy of such assignment or assignments of the Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of which such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereofassignments have been recorded; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Funding Mortgage Securities I Inc)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans on or before the Cut-off Date).
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, except as set forth in Section 2.01(c) below, the Depositor has delivered Company does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) (I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Mortgage 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;
(iii) An original Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment certified by the public recording office in which such assignment has been recorded;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator thereof to the Person assigning it to the Trustee or a copy of such assignment or assignments of the Mortgage certified by the public recording office in which such assignment or assignments have been recorded; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan or a copy of each modification, assumption agreement or preferred loan agreement certified NY1-208988.4 41 by the public recording office in which such document has been recorded. and (II) with respect to each Cooperative Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of Proprietary Lease to the originator of the Cooperative Loan with intervening assignments showing an unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the related Cooperative Stock pledged with respect to such Cooperative Loan, together with an undated stock power (or other similar instrument) executed in blank blank;
(iv) The original recognition agreement by the last endorseeCooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, including all intervening endorsements and any continuation statements, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security interest referenced in clause (vi) above showing a complete an unbroken chain of endorsement title from the originator to the last endorseeTrustee, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(iiviii) An executed assignment of the interest of the originator in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement referenced in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee;
(ix) The original Assignment of each modification, assumption agreement or preferred loan agreement, if any, relating to such Cooperative Loan; and NY1-208988.4 42
(x) An executed UCC-1 financing statement showing the Master Servicer as debtor, the Company as secured party and the Trustee as assignee and an executed UCC-1 financing statement showing the Company as debtor and the Trustee as secured party, each in a form sufficient for filing, evidencing the interest of such debtors in the Cooperative Loans.
(c) The Company may, in lieu of delivering the documents set forth in Section 2.01(b)(I)(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth below. Within ten Business Days following the earlier of (i) the receipt of the original of each of the documents or instruments set forth in Section 2.01(b)(I)(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by such Section) for any Mortgage in blank, unless Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loan Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(I)(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) which has been delivered to it by the Company. Every six months after the Closing Date, for so long as the Master Servicer is holding documents pursuant to this Section 2.01(c), the Master Servicer shall deliver to (i) Moody's if it is one of the Rating Agencies, (ii) the Trustee xxx (xxi) each Custodian a MERS Loan;report setting forth the status of the documents which it is holding.
(iiid) In the original event that in connection with any Mortgage Loan the Company cannot deliver the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof certified by the public recording office) with evidence of recording thereon or a certified true concurrently with the execution and correct copy delivery of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date this Agreement solely because of a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Company shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a true and correct photocopy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Company shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."real property records the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Funding Mortgage Securities I Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Hedge Agreement (the delivery of which shall evidence that the fixed payment for the Hedge Agreement have been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS® System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fund that is (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 High Cost Home Loan Law effective March 1, 2005.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered ’s interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for the Seller and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Depositor further agrees that it will cause, at the Depositor’s own expense, within 30 Business Days after the Closing Date, the MERS® System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held conveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 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 related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 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), (B), (C) and (D) granted by the Seller to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities or chattel paper shall be deemed to each Mortgage Loan shall constitute be “possession by the "Custodial File."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 [______] Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 thereof); and
Appears in 1 contract
Samples: Pooling and Servicing Agreement (SG Mortgage Securities, LLC)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund., together with all rights of the Depositor under the Yield Maintenance Agreements (if any), and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund. Fremont [200 - ] Pooling & Servicing Agreement 63
(ba) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of Trustee or the Trustee Trust Administrator, as applicable, for the benefit of the Certificateholders Certificateholders, the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed “Pay to the order of , without recourse” and signed (which may be by facsimile signature) in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised by the Depositor that state law so allows;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) with respect to each Mortgage Loan, the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If in connection with any Mortgage Loan, the Responsible Party Originator cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party Originator (to the extent that it has not previously delivered the same to the Depositor, the Trustee or the Trust Administrator) shall deliver or cause to be delivered to the CustodianTrustee or Trust Administrator, (1) a photocopy of such Mortgage, together with (i) in the case of a delay caused certified by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage Originator (or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney attorney) to be a true and complete copy of the original recorded such Mortgage will be promptly delivered dispatched to the Custodian appropriate public recording office for recordation; and (2) upon receipt thereof by the Responsible Party; or (ii) Originator, the original recorded Mortgage, or, in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreementsagreements (if provided), with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) except with respect to each MERS Designated Mortgage Loan, the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form blank and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) with respect to each Mortgage Loan, the originals or certified true copies of documents sent for recordation of all intervening assignments Assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or Fremont [200 - ] Pooling & Servicing Agreement 64 if such public recording office retains the original recorded assignments Assignments of mortgageMortgage, the Responsible Party Originator (to the extent that it has not previously delivered the same to the Depositor, the Trustee or the Trust Administrator) shall deliver or cause to be delivered to the CustodianTrustee or the Trust Administrator, (1) a photocopy of such intervening assignment, together with (A) in the case of a delay caused certified by the public recording officeOriginator (or certified by the title company, an officer's certification escrow agent, or closing attorney) to be a complete copy of the Responsible Party certifying that such intervening assignment Assignment of mortgage has been Mortgage dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or Originator, and (B2) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original or duplicate lender’s title policy and any riders thereto or, any one of primary mortgage guaranty insurance an original title binder, an original or certificate copy of insurancethe preliminary title report or an original or copy of the title commitment, if applicableand if, copies then certified by the title company;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided); and
(ix) original powers of attorney, if applicable, with evidence of recording thereon, if required. The Depositor Each Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a lost note affidavit as of the Closing Date. In the event, for purposes of the Closing Date, one or more lost note affidavits are provided to cover multiple missing Mortgage Notes, the Originator shall deliver to the Custodian Trustee or the Trust Administrator the applicable individual lost note affidavits within ten (10) Business Days of the Closing Date. If the Originator fails to deliver the required individual lost note affidavits within the specified period of time, the Trustee or the Trust Administrator shall notify the Originator to take such remedial actions, including, without limitation, the repurchase by the Originator of such Mortgage Loan within 30 days of the Closing Date. The Originator shall deliver to the Trustee or the Trust Administrator the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 150 days from the Closing Date. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. (“MERS”) or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trustee 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. From time to time, pursuant the Originator shall forward with respect to the Master Seller's Warranties and Servicing AgreementMortgage Loans, the Responsible Party may forward to the Custodian Trustee or the Trust Administrator additional original documents, and additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan Fremont [200 - ] Pooling & Servicing Agreement 65 approved by the Responsible Party, Originator in accordance with the terms of the Master Seller's Warranties and Servicing this Agreement. All such mortgage documents held by the Custodian Trustee or the Trust Administrator as to each Mortgage Loan shall constitute the "“Custodial File."” The requirements of this paragraph relate only to Mortgage Loans that are not MERS Designated Mortgage Loans. On or prior to the Closing Date, the Originator shall deliver to the Trustee or Trust Administrator Assignments of Mortgages, in blank, for each Mortgage Loan (except with respect to each MERS Designated Mortgage Loan). The Originator shall cause such Assignments of Mortgage with completed recording information to be provided to the Trustee or the Trust Administrator in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the fully completed Assignments of Mortgages in recordable form, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Originator at no expense to the Trust Fund, the Master Servicer, the Trust Administrator, the Trustee or the Depositor in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(a)(vi). 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 if the Trustee, the Trust Administrator and each Rating Agency have received an opinion of counsel, satisfactory in form and substance to the Trustee and Trust Administrator and each Rating Agency, to the effect that the recordation of such Assignments of Mortgage in any specific jurisdiction is not necessary to protect the Trustee’s interest in the related Mortgage Note. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned by the Originator at the Originator’s expense to “HSBC Bank USA, National Association, as trustee under the Pooling and Servicing Agreement dated as of [ , 200___], Fremont Home Loan Trust [200___-___].” In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Originator shall promptly prepare a substitute assignment to cure such defect and thereafter cause each such assignment to be duly recorded. On or prior to the Closing Date, the Depositor shall deliver to the Trustee, the Servicer and the Trust Administrator a copy of the Data Tape Information in an electronic, machine readable medium in a form mutually acceptable to the Depositor, the Servicer, the Master Servicer, the Trust Administrator and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Trustee, the Master Servicer, the Trust Administrator and the Servicer. In the event, with respect to any Mortgage Loans, that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee or the Trust Administrator within 150 days following the Closing Date, and in the event that the Originator does not cure such failure within 30 days of discovery or receipt of written notification of such failure from the Depositor, the related Mortgage Loan shall, upon the request of the Depositor, be repurchased by the Originator at the price and in the manner specified in Section 2.03. The foregoing repurchase remedy shall not apply in the event that the Originator cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Originator shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an Fremont [200 - ] Pooling & Servicing Agreement 66 officer’s certificate of an officer of the Originator confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Originator shall be deemed to have been satisfied upon delivery by the Originator to the Trustee or the Trust Administrator prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(b) 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”) to be known, for convenience, as “Fremont Home Loan Trust [200___-___]” and HSBC Bank USA, National Association is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(c) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized and directed, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans) pursuant to Section 2.01(a) and, solely in its capacity as Trustee on behalf of the Certificateholders, to enter into the Yield Maintenance Agreements.
(d) 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, including without limitation, the representation and warranty set forth in paragraph II(l) of Schedule IV hereto.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before the Cut-off Date). The foregoing sale, transfer, assignment and set over does not and is not intended to result in a creation of an assumption by the Trustee of any obligation of the Depositor or any other Person in connection with the Mortgage Loans or any agreement or instrument relating thereto, except as specifically set forth herein.
(b) In connection with the such transfer and assignment of each Mortgage Loanassignment, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee Trustee, for the benefit of the Certificateholders Certificateholders, the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile signature in the following form: "Pay to the order of Wells Fargo Bank Minnesota, National Association, as trustee for xxxxxrs of the Banc of America Alternative Loan Trust 2003-5 Mortgage Pass-Through Certificates, Series 2003-5, without recourse in blank by the last endorsee, including recourse," with all necessary intervening endorsements showing a complete chain of endorsement from the originator to the last endorseeTrustee (each such endorsement being sufficient to transfer all right, title and interest of the party so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note);
(ii) The original Assignment of Mortgage in blankexcept as provided below, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original recorded Mortgage with evidence of a recording thereon on thereon, or prior to the Closing Date because of a delay caused by the public recording office where if any such Mortgage has not been delivered for recordation returned from the applicable recording office or because such Mortgage has been lost lost, or because if such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title companyDepositor as being a true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, escrow agenta duly executed Assignment of Mortgage to "Wells Fargo Bank Minnesota, National Association, as trustee for xxx xolders of the Banc of America Alternative Loan Trust 2003-5 Mortgage Pass-Through Certificates, Series 2003-5" (which may be included in a blanket assignment or closing attorney to be assignments), together with, except as provided below, originals of all interim recorded assignments of such mortgage or a copy of such interim assignment certified by the Depositor as being a true and complete copy of the original recorded intervening assignments of Mortgage will (each such assignment, when duly and validly completed, to be promptly delivered in recordable form and sufficient to effect the assignment of and transfer to the Custodian upon receipt thereof by assignee thereof, under the Responsible PartyMortgage to which the assignment relates); or (ii) in provided that, if the case of a related Mortgage where a public recording office retains has not been returned from the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a applicable public recording office, a copy such Assignment of such Mortgage certified by such public recording office or may exclude the information to be provided by the title insurance company that issued recording office; and provided, further, if the title policy related Mortgage has been recorded in the name of Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be a true prepared or delivered and complete copy instead, the Servicer shall take all actions as are necessary to cause the Trust to be shown as the owner of the original recorded Mortgagerelated Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or extension agreements, if any, with evidence of recording thereon, or certified true copies of any document sent for recordationif any;
(v) the original Assignment or duplicate original mortgagee title insurance policy and all riders thereto;
(vi) the original of any guarantee executed in connection with the Mortgage Note;
(vii) for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion if any, which is secured by a residential long-term lease, a copy of the name lease with evidence of recording indicated thereon, or, if the lease is in the process of being recorded, a photocopy of the assignee and recording information). The Assignment lease, certified by an officer of the respective prior owner of such Mortgage must be duly recorded only if recordation is either necessary under Loan or by the applicable law title insurance company, closing/settlement/escrow agent or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is company or closing attorney to be recorded, a true and correct copy of the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"lease transmitted for recordation;
(viviii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of recording thereon; 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). provided, however, that on the Closing Date, with respect to item (iii), the Depositor has delivered to the Trustee a copy of such Assignment of Mortgage in blank and has caused the Servicer to retain the completed Assignment of Mortgage for recording as described below, unless such Mortgage has been recorded in the name of MERS or its designee. In addition, if the Depositor is unable to deliver or cause the delivery of any original Mortgage Note due to the loss of such original Mortgage Note, the Depositor may deliver a copy of such Mortgage Note, together with a lost note affidavit, and shall thereby be deemed to have satisfied the document delivery requirements of this Section 2.01(b). If in connection with any Mortgage Loans, the Depositor cannot deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all assumption, modification, consolidation or extension agreements, if any, or if any (D) the lender's title policy (together with all riders thereto) satisfying the requirements of clause (ii), (iii), (iv) or (v) above, respectively, concurrently with the execution and delivery hereof because such intervening assignment has document or documents have not been returned from the applicable recording office or has been lost or if such public recording office retains in the original recorded assignments case of mortgageclause (ii), (iii) or (iv) above, or because the title policy has not been delivered to either the Servicer or the Depositor by the applicable title insurer in the case of clause (v) above, the Responsible Party Depositor shall promptly deliver or cause to be delivered to the CustodianTrustee or the Custodian on behalf of the Trustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording officeclause (ii), an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; (iii) or (Biv) in the case of an intervening assignment where a public recording office retains the original recorded intervening above, such Mortgage, such interim assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension agreement, as the case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office, but in no event shall any such delivery of any such documents or instruments be made later than one year following the Closing Date, unless, in the case of clause (ii), (iii) or (iv) above, there has been a continuing delay at the applicable recording office or, in the case of clause (v), there has been a continuing delay at the applicable insurer and the Depositor has delivered the Officer's Certificate to such effect to the Trustee. The Depositor shall forward or cause to be forwarded to the Trustee (1) from time to time additional original documents evidencing an assumption or modification of a Mortgage Loan approved and (2) any other documents required to be delivered by the Responsible PartyDepositor or the Servicer to the Trustee or the Custodian on the Trustee's behalf. In the event that the original Mortgage is not delivered and in connection with the payment in full of the related Mortgage Loan the public recording office requires the presentation of a "lost instruments affidavit and indemnity" or any equivalent document, because only a copy of the Mortgage can be delivered with the instrument of satisfaction or reconveyance, the Servicer shall prepare, execute and deliver or cause to be prepared, executed and delivered, on behalf of the Trust, such a document to the public recording office. As promptly as practicable subsequent to such transfer and assignment, and in any event, within 30 days thereafter, the Servicer shall (except for any Mortgage which has been recorded in the name of MERS or its designee) (I) cause each Assignment of Mortgage to be in proper form for recording in the appropriate public office for real property records within 30 days of the Closing Date and (II) at the Depositor's expense, cause to be 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 Assignment of a 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 30 days after the receipt thereof and, no recording of an Assignment of Mortgage will be required in a state if either (i) the Depositor furnishes to the Trustee an unqualified Opinion of Counsel reasonably acceptable to the Trustee to the effect that recordation of such assignment is not necessary under applicable state law to preserve the Trustee's interest in the related Mortgage Loan against the claim of any subsequent transferee of such Mortgage Loan or any successor to, or creditor of, the Depositor or the originator of such Mortgage Loan or (ii) the recordation of an Assignment of Mortgage in such state is not required by either Rating Agency in order to obtain the initial ratings on the Certificates on the Closing Date. As set forth on Exhibit L attached hereto is a list of all states where recordation is required by either Rating Agency to obtain the initial ratings of the Certificates. The Trustee may rely and shall be protected in relying upon the information contained in such Exhibit L. In the case of Mortgage Loans that have been prepaid in full as of the Closing Date, the Depositor, in accordance with lieu of delivering the terms of above documents to the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by Trustee, or the Custodian as on the Trustee's behalf, will cause the Servicer to each Mortgage Loan shall constitute deposit in the "Servicer Custodial FileAccount the portion of such payment that is required to be deposited in the Servicer Custodial Account pursuant to Section 3.08."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Alternative Loan Trust 2003-5)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due prior to August 1, 2003); (ii) the Mortgage Insurance Premium Taxes Reserve Fund Deposit; and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Hedge Agreement (the delivery of which shall evidence that the Fixed Payment for the Hedge Agreement has been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that the Fixed Payment has been authorized hereby) and the MI Policy, and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by Trustee and the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Securities Corp)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Hedge Agreement (the delivery of which shall evidence that the fixed payment for the Hedge Agreement has been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fund that is either (i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy opinion of the original recorded Mortgage will be promptly delivered counsel acceptable to the Custodian upon receipt thereof by Trustee and the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RASC Series 2004-Ks8 Trust)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereofof this Agreement, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee Trustee, for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in Company in, to and under the Initial Mortgage Loans, including all interest due and principal received, with respect to the Initial Mortgage Loans, after the Initial Cut-off Date and all other assets constituting the Trust Fund. The Company, concurrently with the execution and delivery of this Agreement, does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including without limitation, the rights of the Company to enforce the obligations of the Seller with respect to the representations and warranties set forth therein.
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, the Depositor has delivered or caused Company shall cause to be delivered to the Custodian on behalf of to, and deposited with, the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:(or copies thereof as permitted by this Section):
(i) the The original Mortgage Note, endorsed "Pay to the order of Bank One, National Association, as Trustee under the Pooling and Servicing Agreement, dated September 30, 1999, WMC Series 1999-A without recourse in blank by the last endorsee, including all intervening endorsements recourse" and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Mortgage Loan as to which the original Mortgage Note has been lost, misplaced or destroyed, a lost note affidavit in the form attached hereto as Exhibit L;
(ii) The original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to thereon, or, if the Closing Date because of a delay caused by the public recording office where such original Mortgage has not yet been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by returned from the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such the original Mortgage certified by the title companySeller, escrow agent, Seller's agent or closing attorney to be a true and complete copy the public recording office in which such original Mortgage has been submitted for recording;
(iii) an Assignment of the original recorded Mortgage will from the Seller to "Bank One, National Association, as Trustee under the Pooling and Servicing Agreement, dated September 30, 1999, WMC Series 1999-A, without recourse" which shall be in form and substance acceptable for recording other than recording information not yet returned from the recorder's office, which shall be provided promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or Seller;
(iiiv) in originals of any intervening assignments of the case Mortgage, with evidence of a Mortgage where a public recording office retains thereon, or, if the original recorded Mortgage or in of any such intervening assignment has not yet been returned from the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage original intervening assignment certified by such the Seller, Seller's agent or the public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the in which such original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent intervening assignment has been submitted for recordationrecording;
(v) the original Assignment policy of title insurance (or a commitment for title insurance, if the policy is being held by the title insurance company pending recordation of the Mortgage for or has otherwise not yet been received by the title company); and
(vi) a true and correct copy of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loan. Promptly after the Closing Date (or after the date of transfer of any Qualified Substitute Mortgage Loan or Subsequent Mortgage Loan), the Seller at its own expense shall complete in form and substance acceptable for recording (except for the insertion of the name of the assignee Trustee and submit for recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where appropriate public recording office for real property records each of the Mortgaged Property is located as notified Assignments referred to in clause (iii) above except in states where, in the Custodian. If the Assignment opinion of Mortgage is to be recorded, the Mortgage shall be assigned counsel acceptable to the Trustee. If , the Assignment of Mortgage Rating Agencies and the Master Servicer, such recording is not required to be recorded, protect the Assignment of Mortgage shall be delivered Trustee's interest in blank. If the Mortgage Loan was acquired by against the Responsible Party in claim of any subsequent transferee or any successor to or creditor of the Seller or the originator of such Mortgage Loan, and the Trustee shall retain a mergerphotocopy of each such Assignment. If any Assignment is lost or returned unrecorded to the Trustee because of any defect therein, the Seller shall prepare a substitute Assignment of or cure such defect, as the case may be, and the Seller shall cause such substitute Assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all any original intervening assignments assignment of the Mortgage was not, in accordance with evidence clause (iii) or (iv) above, delivered by the Seller to the Trustee on or prior to the Closing Date (or the date of recording thereon, transfer of any Qualified Substitute Mortgage Loan or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageSubsequent Mortgage Loan), the Responsible Party Seller shall deliver or cause to be delivered the originals of such documents to the CustodianTrustee promptly upon receipt thereof. The Trustee hereby acknowledges its acceptance of all right, a photocopy of such intervening assignmenttitle and interest to the Mortgage Loans and other property, together with now existing and hereafter created, conveyed to the Trust Fund pursuant to this Section 2.01.
(Ac) in It is intended that the case of a delay caused conveyances by the public recording office, an officer's certification Company to the Trustee of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched Mortgage Loans as provided for in this Section 2.01 and the Uncertified REMIC I Regular Interests provided for in Section 2.06 and the Uncertificated REMIC II Regular Interests provided for in Section 2.07 be construed as a sale by the Company to the appropriate public recording office Trustee of the Mortgage Loans, the Uncertificated REMIC I Regular Interests and the Uncertificated REMIC II Regular Interests for recordation and the benefit of the Certificateholders. Further, it is not intended that any such original recorded intervening assignment of mortgage or a copy of such intervening assignment of mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy conveyance be deemed to be a true and complete copy pledge of the original recorded intervening assignment of mortgage will be promptly delivered Mortgage Loans, the Uncertificated REMIC I Regular Interests and the Uncertificated REMIC II Regular Interests by the Company to the Custodian upon receipt thereof by Trustee to secure a debt or other obligation of the Responsible Party; or (B) Company. However, in the case event that the Mortgage Loans, the Uncertificated REMIC I Regular Interests and the Uncertificated REMIC II Regular Interests are held to be property of an intervening assignment where the Company, or if for any reason this Agreement is held or deemed to create a public recording office retains the original recorded intervening assignment or security interest in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementMortgage Loans, the Responsible Party may forward to Uncertificated REMIC I Regular Interests and the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."Uncertificated REMIC
Appears in 1 contract
Samples: Pooling and Servicing Agreement (WMC Secured Assets Corp WMC Mort Pass THR Cert Ser 1999-A)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Trustee with respect to the Mortgage Loans, other than the Option One Mortgage Loans, and to the Custodian on behalf of with respect to the Trustee Option One Mortgage Loans, for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage NoteNote bearing all intervening endorsements, endorsed "Pay to the order of _____________, without recourse recourse" and signed (which may be by facsimile signature) in blank the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, unless the Trustee is advised in writing by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator applicable Responsible Party (pursuant to the last endorseeapplicable Purchase Agreement) that state law does not so allow;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) (A) with respect to the Mortgage Loans, other than the Option One Mortgage Loans, the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any such Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Trustee shall notify the applicable Responsible Party shall to deliver or cause to be delivered to the CustodianTrustee as required under the applicable Purchase Agreement, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the applicable Responsible Party certifying (delivered pursuant to the applicable Purchase Agreement) or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the applicable Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2005-He1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Trustee with respect to the Mortgage Loans other than the Deutsche Bank Mortgage Loans, and to the Custodian on behalf of with respect to the Trustee Deutsche Bank Mortgage Loans, for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed (which may be by facsimile signature) in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Note for endorsements, the endorsement may be contained on an allonge, unless the Trustee is advised in writing by the Responsible Party that state law does not so allow;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) (A) with respect to the Deutsche Bank Mortgage Loans, the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any such Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, Custodian a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification certificate of the Responsible Party or a certificate from an escrow company, a title company or closing attorney certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office to be a true and complete copy of the original recorded Mortgage; or (B) with respect to the Mortgage Loans (other than the Deutsche Bank Mortgage Loans), the original Mortgage with evidence of recording thereon or a certified true copy of such Mortgage submitted for recording. If, in connection with any Mortgage Loan (other than the Deutsche Bank Mortgage Loans), the original Mortgage cannot be delivered with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the title insurance company that issued public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the title policy original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Trustee a photocopy of such Mortgage certified by the Responsible Party to be a true and complete copy of such Mortgage and shall forward to the Trustee such original recorded Mortgage within 14 days following the Responsible Party's receipt of such Mortgage from the applicable public recording office; or in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form and substance acceptable for recording blank (except for the insertion of the name of the assignee and recording informationwith respect to MERS Designated Mortgage Loans). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) (A) with respect to the Deutsche Bank Mortgage Loans (except with respect to MERS Designated Mortgage Loans), the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (Ai) in the case of a delay caused by the public recording office, an officer's certification certificate of the Responsible Party or a certificate from an escrow company, a title company or a closing attorney certifying that such intervening assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage Mortgage or a copy of such intervening assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy appropriate public recording office to be a true and complete copy of the original recorded intervening assignment of mortgage Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment; or (B) with respect to the Mortgage Loans (other than the Deutsche Bank Mortgage Loans), the originals of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator to the last endorsee with evidence of recording thereon or a certified true copy of such intervening assignments of Mortgage submitted for recording, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of Mortgage, the Responsible Party shall deliver or cause to be delivered a photocopy of such intervening assignment, certified by the Responsible Party to be a true and complete copy of such intervening assignment and shall forward to the Trustee such original recorded intervening assignment within 14 days following the Responsible Party's receipt of such from the applicable public recording office; or in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or, in the event such original title policy is unavailable, a certified true copy of primary mortgage guaranty the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor Responsible Party shall deliver cause to be delivered to the Custodian Trustee or Custodian, as applicable, the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days one year from the Closing Original Purchase 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 Servicer shall take all reasonable actions as are necessary to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee or Custodian, as applicable, additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee or Custodian, as applicable, as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Responsible Party shall deliver to the Trustee or the Custodian, as applicable, Assignments of Mortgages, in blank, for each Mortgage Loan. The Responsible Party shall cause the Assignments of Mortgages and complete recording information to be provided to the Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the complete recording information for a Mortgage, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Responsible Party and at no expense to the Trust Fund, the Trustee, the Servicer, or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Trustee and each Rating Agency have 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan or (iii) if the Rating Agencies have each notified the Depositor in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any LIBOR Certificates to be downgraded or withdrawn; provided, however, that the Servicer shall not be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent that the Servicer does not have prior knowledge of the act or omission that causes such loss. However, with respect to the Assignments of Mortgage referred to in clauses (i), (ii) and (iii) above, if foreclosure proceedings occur against a Mortgaged Property, the Depositor shall notify the Servicer and the Servicer shall record such Assignment of Mortgage at the expense of the Responsible Party. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Wells Fargo Bank, National Association, as trustee under the Pooling anx Xxxvicing Agreement dated as of March 1, 2005, Morgan Stanley ABS Capital I Inc. Trust 2005-WMC2". In the event that axx xxxh Xxxxxxment of Mortgage is lost or returned unrecorded because of a defect therein, the Responsible Party shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee or Custodian, as applicable, within one year following the Original Purchase Date, and in the event that the Responsible Party does not cure such failure within 30 days of discovery or receipt of written notification of such failure from the Depositor, the related Mortgage Loan shall, upon the request of the Depositor, be repurchased by the Responsible Party at the price and in the manner specified in Section 2.03. The foregoing repurchase obligation shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the Trustee or the Custodian, as applicable, prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof. On or prior to the Closing Date, the Depositor shall deliver to the Trustee and the Custodian a copy of the Data Tape Information in an electronic, machine readable medium in a form mutually acceptable to the Trustee or Custodian, as applicable.
(c) 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") to be known, for convenience, as "MORGAN STANLEY ABS CAPITAL I INC. TRUST 2005-WMC2" and Wells Fargo Bank, Xxxxoxxx Xxxociation is hereby appointed as Trustee ix xxxordance 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, including without limitation, the representation and warranty set forth in paragraph (43) of Schedule III.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans) pursuant to Section 2.01(a). The Trustee on behalf of the Trust is hereby directed to enter into the Interest Rate Cap Agreements.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2005-Wmc2)
Conveyance of Mortgage Loans. (a) The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby sellsassign, transferstransfer, assignssell, sets set over and otherwise conveys convey to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule (exclusive of any prepayment fees and late payment charges received thereon) and all other assets included or to be included in the Trust Fund.
Fund for the benefit of the Certificateholders. Such assignment includes all principal and interest received by the Servicer on or with respect to the Mortgage Loans (b) other than payment of principal and interest due on or before the Cut-off Date). In connection with the such transfer and assignment assignment, the Depositor has caused the Sponsor with respect to each Mortgage Loan, to deliver to, and deposit to or at the direction of the Trustee, as described in the Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with instruments:
(a) With respect to each Mortgage Loan so assignedLoan, other than a Cooperative Loan:
(i) the original Mortgage Note, Note endorsed without recourse to the order of the Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee or in blank by or, with respect to any Mortgage Loan as to which the last endorseeoriginal Mortgage Note has been lost or destroyed and has not been replaced, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorseeLost Note Affidavit;
(ii) The original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on 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 Sponsor or prior to the Closing Date because of a delay caused by the public recording office where in which such original Mortgage has been delivered 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, or, if the original of any such intervening assignment has not yet been returned from the public recording office, a copy of such original intervening assignment certified by the Sponsor or the public recording office in which such original intervening assignment has been recorded;
(v) the original policy of title insurance (or a preliminary title report commitment for title insurance, if the policy is being held by the title insurance company pending recordation of the Mortgage); and
(vi) the original or because such a true and correct copy of any assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loan.
(b) With respect to each Mortgage Loan that is a Cooperative Loan (as indicated on the Mortgage Loan Schedule):
(i) the original Mortgage Note endorsed without recourse to the order of the Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or because destroyed and has not been replaced, a Lost Note Affidavit;
(ii) the original duly executed assignment of Security Agreement to the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or certified copy thereof) with respect to the Security Agreement, and any required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with respect to the security agreement, indicating the Trustee as the assignee of the secured party;
(v) the stock certificate representing the Cooperative Assets allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original intervening assignments, including warehousing assignments, if any, showing, to the extent available, an unbroken chain of the related Mortgage Loan to the Trustee, together with a copy of the related Form UCC-3 with evidence of filing thereon; and
(ix) the original or a true and correct copy of any assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loan. Within 30 days after the Closing Date, the Depositor shall complete or cause to be completed the Assignments of Mortgage in the name of “Deutsche Bank National Trust Company, as trustee under the Agreement relating to American Home Mortgage Assets Trust 2007-5, Mortgage-Backed Pass-Through Certificates, Series 2007-5” (or shall prepare or cause to be prepared new forms of Assignment of Mortgage so completed in the name of the Trustee) for each Mortgage Property in a state, if any, which is specifically excluded from the Opinion of Counsel delivered by the Depositor to the Trustee and the Custodian, each such assignment shall be recorded in the appropriate public office for real property records, and returned to the Custodian, at no expense to the Trustee or the Custodian. The Sponsor 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 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 Custodian as agent for the Trustee pursuant to clause (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 as agent for the Trustee pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement, the 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 Trustee, the Custodian 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, each assignment shall be submitted for recording by the Sponsor in the manner described above, at no expense to the Issuing Entity, the Custodian or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates evidencing at least 25% of the Voting Rights, (ii) the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Sponsor, (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof and (v) if the Sponsor is not the Master Servicer and with respect to any one assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains the original recorded MortgageMortgage after it has been recorded, the Responsible Party Sponsor shall deliver or cause be deemed to be delivered have satisfied its obligations hereunder upon delivery to the Custodian, a photocopy Custodian as agent for the Trustee of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such 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 as agent for the Trustee because of any defect therein, the Sponsor is required, as described in the Mortgage Loan Purchase Agreement, to prepare a substitute Assignment or cure such defect, as the case may be, and the Sponsor shall cause such Assignment to be recorded intervening assignment;
in accordance with this section. 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 (viior deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
code in the field which identifies the specific Trustee and (viiib) the original lender's title policy insurance or other evidence of title such as a copy code in the field “Pool Field” which identifies the series of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed Certificates issued in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver further agrees that it will not, and will not permit the Servicer to alter the Custodian the applicable recorded document promptly upon receipt from the respective recording office but codes referenced in no event later than 240 days from the Closing Date. From time this paragraph with respect to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to the Cooperative Loans, the Depositor will, promptly after the Closing Date, cause the related financing statements (if not yet filed) and an assignment thereof from the Depositor to the Trustee to be filed in the appropriate offices. Except as may otherwise expressly be provided herein, none of the Depositor, the Custodian, the Master Seller's Warranties Servicer, or the Trustee shall (and Servicing Agreementthe 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. All 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 mortgage 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 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 Custodian as agent for the Trustee or any other agent of the Trustee of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to each 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 shall, to the extent consistent with this 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 perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Agreement. The parties hereto agree and understand that it is not intended that any Mortgage Loan shall constitute be included in the "Custodial FileTrust that is any of (i) a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost Home Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act effective November 7, 2004 or (iv) a “High-Cost Home Loan” as defined by the Indiana High Cost Home Loan Law effective January 1, 2005."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2007-5)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans on or before the Cut-off Date).
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, except as set forth in Section 2.01(c) below, the Depositor has delivered Company does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) (I) with respect to each Mortgage Loan so assigned:assigned (other than a Cooperative Loan):
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage with evidence of Mortgage in blank, unless recording indicated thereon or a copy of the Mortgage Loan is a MERS Loancertified by the public recording office in which such Mortgage has been recorded;
(iii) An original Assignment of the original Mortgage, Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused such assignment certified by the public recording office where in which such Mortgage assignment has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgagerecorded;
(iv) the originals of all assumption, modification, consolidation The original recorded assignment or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence showing an unbroken chain of recording thereon, or if any such intervening assignment has not been returned title from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered originator thereof to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched Person assigning it 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."Trustee
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Funding Mortgage Securities I Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, together with all rights of the Depositor under the Assignment Agreements and the Purchase Agreements (solely insofar as such Agreements relate to the Mortgage Loans), and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage NoteNote bearing all intervening endorsements, endorsed "Pay to the order of _____________, without recourse recourse" and signed (which may be by facsimile signature) in blank the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised in writing by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator applicable Originator (pursuant to the last endorseeapplicable Purchase Agreement) that state law so allows;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party Trustee shall notify the applicable Originator to deliver or cause to be delivered to the CustodianTrustee, as required under the applicable Purchase Agreement, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying applicable Originator (delivered pursuant to the applicable Purchase Agreement) or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Partyapplicable Originator; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered Loan endorsed in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the Responsible Party Trustee shall deliver or cause notify the applicable Originator, to be delivered to deliver, as required under the Custodianapplicable Purchase Agreement, a photocopy of such intervening assignment, together with (Ai) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying applicable Originator or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage Mortgage or a copy of such intervening assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy appropriate public recording office to be a true and complete copy of the original recorded intervening assignment of mortgage Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Partyapplicable Originator; or (Bii) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or attorney's opinion of primary mortgage guaranty title and abstract of title, or, in the event such original title policy is unavailable, a certified true copy of the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor will use its reasonable efforts to assist the Trustee and the Servicers in enforcing the obligations of the Originators under the Purchase Agreements. The Depositor shall deliver cause to be delivered to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 180 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the applicable Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File". No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the applicable Servicer of the complete recording information for a Mortgage, the applicable Servicer shall promptly submit or cause to be submitted for recording, at the expense of the applicable Originator as required pursuant to the related Purchase Agreement and at no expense to the Trust Fund, the Trustee, the applicable Servicer, or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Trustee and each Rating Agency have 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note or (ii) if the Rating Agencies have each notified the Depositor in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any LIBOR Certificates to be downgraded or withdrawn; provided, however, that no Servicer shall be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent such Servicer has not received prior knowledge of the act or omission that causes such loss. However, if at any time that clause (i) or (ii) of the preceding sentence is no longer true or if foreclosure proceedings occur against a Mortgaged Property, the Depositor shall notify the applicable Servicer and the Servicer shall record such Assignment of Mortgage at the expense of the related Originator. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of June 1, 2003, Morgan Stanley ABS Capital I Inc. Trust 2003-HE1". In the event txxx xxy xxxx Xssignment of Mortgage is lost or returned unrecorded because of a defect therein, the Depositor shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded. On or prior to the Closing Date, the Depositor shall deliver to the Trustee a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Trustee.
(c) 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") to be known, for convenience, as "MORGAN STANLEY ABS CAPITAL I INC. TRUST 2003-HE1" and Deutsche Baxx Xxxixxxx Xxust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans on or before the Cut-off Date).
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, except as set forth in Section 2.01(c) below, the Depositor has delivered Company does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) (I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Mortgage 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;
(iii) An original Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment certified by the public recording office in which such assignment has been recorded;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator thereof to the Person assigning it to the Trustee or a copy of such assignment or assignments of the Mortgage certified by the public recording office in which such assignment or assignments have been recorded; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan or a copy of each modification, assumption agreement or preferred loan agreement certified by the public recording office in which such document has been recorded. and (II) with respect to each Cooperative Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of Proprietary Lease to the originator of the Cooperative Loan with intervening assignments showing an unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the related Cooperative Stock pledged with respect to such Cooperative Loan, together with an undated stock power (or other similar instrument) executed in blank bla nk;
(iv) The original recognition agreement by the last endorseeCooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, including all intervening endorsements and any continuation statements, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security interest referenced in clause (vi) above showing a complete an unbroken chain of endorsement title from the originator to the last endorseeTrustee, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(iiviii) An executed assignment of the interest of the originator in the Security Agreement, Assignme nt of Proprietary Lease and the recognition agreement referenced in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee;
(ix) The original Assignment of each modification, assumption agreement or preferred loan agreement, if any, relating to such Cooperative Loan; and
(x) An executed UCC-1 financing statement showing the Master Servicer as debtor, the Company as secured party and the Trustee as assignee and an executed UCC-1 financing statement showing the Company as debtor and the Trustee as secured party, each in a form sufficient for filing, evidencing the interest of such debtors in the Cooperative Loans.
(c) The Company may, in lieu of delivering the documents set forth in Section 2.01(b)(I)(iv) and (v) and Section 2.01(b)(II)(ii), (iv), (vii), (ix) and (x) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth below. Within ten Business Days following the earlier of (i) the receipt of the original of each of the documents or instruments set forth in Section 2.01(b)(I)(iv) and (v) and Section 2.01(b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitt ed by such Section) for any Mortgage in blank, unless Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loan Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(I)(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) which has been delivered to it by the Company. Every six months after the Closing Date, for so long as the Master Servicer is a MERS Loan;
holding documents pursuant to this Section 2.01(c), the Master Servicer shall deliver to (i) Moody's if it is one of the Rating Agencies, (ii) the Trustee and (iii) each Custodian a report setting forth the original status of the documents which it is holding.
(d) In the event that in connection with any Mortgage Loan the Company cannot deliver the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof certified by the public recording offic e) with evidence of recording thereon or a certified true concurrently with the execution and correct copy delivery of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date this Agreement solely because of a delay caused caus ed by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreeme nt as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Company shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a true and correct photocopy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Company shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation real property records the Assignment referred to in clause (I)(iii) of Section 2.01(b), except in states where, in the opinion of counsel acceptable to the Trustee and that the original recorded Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan against the claim of any subsequent transferee or a copy any successor to or creditor of the Company or the originator of such Mortgage certified by Loan and shall promptly cause to be filed the title companyForm UCC-3 assignment and UCC-1 financing statement referred to in clause (II)(vii) and (x), escrow agentrespectively, of Section 2.01(b). If any Assignment, Form UCC-3 or Form UCC-1, as applicable, is lost or returned unrecorded to the Company because of any defect therein, the Company shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as applicable, or closing attorney cure such defect, as the case may be, and cause such Assignment to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, accordance with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information)this paragraph. The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage Company shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall promptly deliver or cause to be delivered to the CustodianTrustee or the respective Custodian such Mortgage or assignment or Form UCC-3 or Form UCC-1, a photocopy of such intervening assignmentas applicable, together with (A) in the case of a delay caused or copy thereof certified by the public recording office, an officer's certification ) with evidence of recording indicated thereon upon receipt thereof from the Responsible Party certifying that such intervening assignment of mortgage has been dispatched to the appropriate public recording office for recordation or from the related Subservicer. In connection with its servicing of Cooperative Loans, the Master Servicer will use its best efforts to file timely continuation statements with regard to each financing statement and assignment relating to Cooperative Loans as to which the related Cooperative Apartment is located outside of the State of New York. In the event that the Company delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Company shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee within 45 days after the Closing Date, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(I)(iv) and (v) and 2.01(b)(II)(vi) and (vii) and that such original recorded intervening assignment of mortgage or may be delivered as a copy of such intervening assignment of mortgage certified rather than the original may be delivered in microfiche form.
(e) It is intended that the conveyances by the escrow agent, or closing attorney or Company to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the title insurance company Company to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that issued the title policy any such conveyance be deemed to be a true and complete copy pledge of the original recorded intervening assignment of mortgage will be promptly delivered Mortgage Loans by the Company to the Custodian upon receipt thereof 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 of Residential Funding, 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 Section 2.01 shall be deemed to be (1) a grant by the Responsible Party; 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 (i) with respect to each Cooperative Loan, the related Mortgage Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock Certificate, Cooperative Lease, any insurance policies and all other documents in the related Mortgage File and (ii) with respect to each Mortgage Loan other than a Cooperative Loan, the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, all amounts payable pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the Master Sellerforegoing, and 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 Residential Funding's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A), (B), (C) and (D) granted by Residential Funding to the Company pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Section 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, at the Company's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Company shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Company, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officer's Certificate of the Company, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Company or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Company or (3) any transfer of any interest of Residential Funding or the Company in any Mortgage Loan.
(f) The Master Servicer hereby acknowledges the receipt by it of cash in an amount equal to $37,973 (the "Initial Monthly Payment Fund"), representing scheduled principal amortization and interest at the Net Mortgage Rate for the Due Date in January 1998, for those Mortgage Loans for which the Trustee will not be entitled to receive such payment. The Master Servicer shall hold such Initial Monthly Payment Fund in the Custodial Account and shall include such Initial Monthly Payment Fund in the Available Distribution Amount for the Distribution Date in January 1998. Notwithstanding anything herein to the contrary, the Initial Monthly Payment Fund shall not be an asset of the REMIC. To the extent that the Initial Monthly Payment Fund constitutes a reserve fund for federal income tax purposes, (1) it shall be an outside reserve fund and not an asset of the REMIC, (2) it shall be owned by the Custodian Sell er and (3) amounts transferred by the REMIC to the Initial Monthly Payment Fund shall be treated as transferred to each Mortgage Loan shall constitute the "Custodial FileSeller or any successor, all within the meaning of Section 1.860G-2(h) of the Treasury Regulations."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Funding Mortgage Securities I Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the CertificateholdersCertificateholders and the Class A Certificate Insurer, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, together with all rights of the Depositor under the Household Sellers Purchase Agreements (solely insofar as the Household Sellers Purchase Agreements relate to the Mortgage Loans).
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders and the Class A Certificate Insurer the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 1.00% of the Mortgage Notes for which there is a lost note affidavit and the copy of the Mortgage Note, endorsed without recourse in blank by the last endorsee, including ) bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised by the Depositor that state law so allows;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordationthereon. If in connection with any Mortgage Loan, the Responsible Party applicable Household Seller cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, pursuant to the Responsible Party Purchase Agreement, the applicable Household Seller shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying applicable Household Seller (or certified by the title company, escrow agent, or closing attorney) stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible Partyapplicable Household Seller; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, if any, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) except with respect to each MERS Designated Mortgage Loan, the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"recordable form;
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments Assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable Household Seller (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments Assignments of mortgageMortgage, pursuant to the Purchase Agreement, the Responsible Party applicable Household Seller shall deliver or cause to be delivered to the CustodianTrustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying applicable Household Seller (or certified by the title company, escrow agent, or closing attorney) stating that such intervening assignment Assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment Assignment of mortgage Mortgage or a copy of such intervening assignment Assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible PartyHousehold Sellers; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original or duplicate lender's title policy and any riders thereto or, any one of primary mortgage guaranty insurance an original title binder, an original or certificate copy of insurancethe preliminary title report or an original or copy of the title commitment, if applicableand if, copies then certified by the title company;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided); and
(ix) original powers of attorney, if applicable, with evidence of recording thereon, if required. The Depositor shall use its reasonable efforts to assist the Trustee and the Servicer in enforcing the obligations of the Household Sellers under the Household Sellers Purchase Agreements. Each Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a lost note affidavit as of the Closing Date. In the event, for purposes of the Closing Date, one or more lost note affidavits are provided to cover multiple missing Mortgage Notes, the Depositor shall use its reasonable efforts to cause the Household Sellers to deliver to the Trustee the applicable individual lost note affidavits within ten (10) Business Days of the Closing Date. If the Household Sellers fail to deliver the required individual lost note affidavits within the specified period of time, the Trustee shall notify the Depositor and the Depositor shall take or cause to be taken such remedial actions under the Household Sellers Purchase Agreements against the Household Sellers as may be permitted to be taken thereunder, including, without limitation, the repurchase by the Responsible Party of such Mortgage Loan within 30 days of the Closing Date. The Depositor shall deliver to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the Servicer shall take all reasonable actions as are necessary at the expense of the Depositor to cause the Trust 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. From time to time, pursuant the Purchaser shall forward, with respect to the Master Seller's Warranties and Servicing AgreementMortgage Loans, the Responsible Party may forward to the Custodian Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by Loan. Pursuant to the Responsible PartyHousehold Sellers Purchase Agreement, in accordance with the terms of the Master Seller's Warranties and Servicing AgreementHousehold Sellers have a similar obligation to forward additional documents. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Trustee Assignments of Mortgages, in blank, for each Mortgage Loan. The Depositor shall cause the Assignments of Mortgage with completed recording information to be provided to the Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the fully completed Assignments of Mortgages in recordable form, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Depositor, at no expense to the Trust Fund or the Trustee in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 if the Trustee, each Rating Agency and the Class A Certificate Insurer have each received an opinion of counsel, satisfactory in form and substance to the Trustee, each Rating Agency and the Class A Certificate Insurer, to the effect that the recordation of such Assignments of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned at the Depositor's expense to "Deutsche Bank National Trust Company as trustee under the Pooling and Servicing Agreement dated as of December 1, 2002, GSAMP Trust 2002-HE2." If there is such a defect with respect to any Mortgage Loan, the Trustee shall take such actions, with the Depositor's consent, to enforce the rights of the Trust as "Purchaser" under Subsection 6.03 of the Purchase Agreement. On or prior to the Closing Date, the Depositor shall deliver to the Trustee a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor and the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Trustee within the time period and in the manner specified in the Household Sellers Purchase Agreements, the Trustee shall notify the Depositor and the Depositor shall take or cause to be taken such remedial actions under the Household Sellers Purchase Agreements against the Household Sellers as may be permitted to be taken thereunder, including, without limitation, if applicable, the repurchase by the Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Household Sellers cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Household Sellers shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the Household Sellers confirming that such document has been accepted for recording.
(c) 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") to be known, for convenience, as "GSAMP Trust 2002-HE2" and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Sec Corp Mort Pass THR Cert Ser 2002-He2)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans on or before the Cut-off Date).
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, except as set forth in Section 2.01(c) below, the Depositor has delivered Company does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section)
(I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Mortgage 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;
(iii) An original Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment certified by the public recording office in which such assignment has been recorded;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator thereof to the Person assigning it to the Trustee or a copy of such assignment or assignments of the Mortgage certified by the public recording office in which such assignment or assignments have been recorded; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan or a copy of each modification, assumption agreement or preferred loan agreement certified by the public recording office in which such document has been recorded. and (II) with respect to each Cooperative Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original A counterpart of the Cooperative Lease and the Assignment of Mortgage in blank, unless Proprietary Lease to the Mortgage originator of the Cooperative Loan is a MERS Loanwith intervening assignments showing an unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the original Mortgage, related Cooperative Stock pledged with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage respect to such Cooperative Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with an undated stock power (ior other similar instrument) executed in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageblank;
(iv) The original recognition agreement by the originals Cooperative of all assumption, modification, consolidation or extension agreements, the interests of the mortgagee with evidence of recording thereon, or certified true copies of any document sent for recordationrespect to the related Cooperative Loan;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"Security Agreement;
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Accredit Loans Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit in respect of the Certificateholders, Trust Fund without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal on or with respect to the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee, the Hedge Agreement (the delivery of which shall evidence that the fixed payment for the Hedge Agreement has been paid and the Trustee and the Trust Fund shall have no further payment obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording indicated thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date because Trustee with evidence of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage indicated thereon or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy assignment with evidence of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageindicated thereon;
(iv) The original recorded assignment or assignments of the originals Mortgage showing an unbroken chain of all assumptiontitle from the originator to the Person assigning it to the Trustee (or to MERS, modification, consolidation or extension agreements, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recording thereonrecordation noted thereon or attached thereto, or certified true copies a copy of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law such assignment or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any any, relating to such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage Loan, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such intervening assignment documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of mortgage certified by all present and future Certificateholders until such time as is set forth in the escrow agent, or closing attorney or by next sentence. Within thirty Business Days following the title insurance company that issued earlier of (i) the title policy to be a true and complete copy receipt of the original recorded intervening assignment of mortgage will be promptly delivered to all of the Custodian upon receipt documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Responsible Party; Trustee to deliver those documents with respect to any or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy all of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian as to each Mortgage Loan shall constitute or Custodians that are the "Custodial Fileduly appointed agent or agents of the Trustee."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RASC Series 2005-Ks7 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to Wells Fargo, in its capacity as Custodian, with respect to the Custodian on behalf of WMC Mortxxxx Loans, to LaSalle with respect to the Decision One Mortgage Loans and to the Trustee with respect to the NC Capital Mortgage Loans, for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage NoteNote bearing all intervening endorsements, endorsed "Pay to the order of _____________, without recourse recourse" and signed (which may be by facsimile signature) in blank the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Note for endorsements, the endorsement may be contained on an allonge, unless the Trustee or applicable Custodian, as applicable, is advised in writing by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from applicable Responsible Party (if required by the originator to applicable Purchase Agreement) or the last endorseeDepositor that state law does not so allow;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the applicable Responsible Party shall deliver or cause to be delivered to the Trustee or applicable Custodian, as applicable, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the applicable Responsible Party, originator, the Depositor, title company, escrow agentcompany or attorney, or closing attorney as applicable, to be a true and complete copy of such Mortgage and shall forward to the Trustee or applicable Custodian, as applicable, such original recorded Mortgage will be promptly delivered to within 14 days following the Custodian upon receipt thereof by the applicable Responsible Party's receipt of such Mortgage from the applicable public recording office; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, thereon or a certified true copies copy of any document sent such agreement submitted for recordationrecording;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form and substance acceptable for recording blank (except for the insertion of the name of the assignee and recording informationwith respect to MERS Designated Mortgage Loans). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the applicable originator (or MERS with respect to each MERS Designated Mortgage Loan) to the last endorsee with evidence of recording thereonthereon or a certified true copy of such intervening assignments of Mortgage submitted for recording, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the applicable Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 applicable Responsible Party, originator, Depositor, title company, escrow agentcompany or attorney, or closing attorney or by the title insurance company that issued the title policy as applicable, to be a true and complete copy of such intervening assignment and shall forward to the Trustee or applicable Custodian, as applicable, such original recorded intervening assignment of mortgage will be promptly delivered to within 14 days following the Custodian upon receipt thereof by the applicable Responsible Party's receipt of such from the applicable public recording office; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy, a photocopy of the mortgage title insurance policy, or attorney's opinion of title and abstract of title, or, in the event such title policy is unavailable, a copy of primary mortgage guaranty the related policy binder or commitment for title from the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor applicable Responsible Party shall deliver cause to be delivered to the Custodian Trustee or applicable Custodian, as applicable, the applicable recorded document promptly upon receipt from the respective recording office but but, solely with respect to the WMC Mortgage Loans, in no event later than 240 days one year from the Closing Datedate such Mortgage Loan was sold by WMC to the Sponsor. If any Mortgage has been recorded in the name of Mortgage Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the applicable Servicer shall take all reasonable actions as are necessary at the expense of the applicable Responsible Party to cause the Trust 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. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the applicable Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee or applicable Custodian, as applicable, additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee or applicable Custodian, as applicable, as to each Mortgage Loan shall constitute the "Custodial File". On or prior to the Closing Date, each Responsible Party shall deliver to the applicable Custodian Assignments of Mortgages, in blank, for each Mortgage Loan. The Responsible Parties shall cause the Assignments of Mortgages and complete recording information to be provided to the applicable Servicer in a reasonably acceptable manner. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the applicable Servicer of the complete recording information for a Mortgage, the applicable Servicer shall promptly submit or cause to be submitted for recording, at the expense of the applicable Responsible Party as required pursuant to the related Purchase Agreement and at no expense to the Trust Fund, the Trustee, the applicable Servicer, or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Trustee, the Custodians and each Rating Agency have 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 of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan or (iii) if the Rating Agencies have each notified the Depositor in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any Offered Certificates to be downgraded or withdrawn; provided, however, that no Servicer shall be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent the applicable Servicer does not have prior knowledge of the act or omission that causes such loss. Unless the Depositor gives the Servicers notice to the contrary, the Depositor is deemed to have given the Servicers notice that the condition set forth in clause (iii) above is applicable. However, with respect to the Assignments of Mortgage referred to in clauses (i) and (ii) above, if foreclosure proceedings occur against a Mortgaged Property, the applicable Servicer shall record such Assignment of Mortgage at the expense of the applicable Responsible Party (and at no expense to such Servicer) as required pursuant to the related Purchase Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of September 1, 2006, Morgan Stanley ABS Capital I Inc. Trust 2006-HE6." In the event that anx xxxx Xxxxxxxent of Mortgage is lost or returned unrecorded because of a defect therein, the applicable Responsible Party shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the applicable Custodian within one year following the date such Mortgage Loan was sold by such Responsible Party to the Sponsor, and in the event that such Responsible Party does not cure such failure within 30 days of discovery or receipt of written notification of such failure from the Depositor, the related Mortgage Loan shall, upon the request of the Depositor, be repurchased by such Responsible Party at the price and in the manner specified in Section 2.03. The foregoing repurchase obligation shall not apply in the event that the applicable Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that such Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of such Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the applicable Responsible Party shall be deemed to have been satisfied upon delivery by the applicable Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof. On or prior to the Closing Date, the Depositor shall deliver to the Trustee and the Custodians, as applicable, a copy of the Data Tape Information in an electronic, machine readable medium in a form acceptable to the Depositor, the Trustee or the Custodians, as applicable.
(c) 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") to be known, for convenience, as "MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-HE6" and Deutsche Bank Natxxxxx Txxxx Xxmpany 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, including without limitation, the representations and warranties set forth in paragraph (aaa) of Schedule IV, paragraph (yy) of Schedule VI and paragraph (aaa) of Schedule VII to this Agreement. The Trust's fiscal year is the calendar year.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans and the Representations and Warranties Agreement) pursuant to Section 2.01(a). The Trustee on behalf of the Trust is hereby directed to enter into the Interest Rate Swap Agreement.
(e) The Depositor shall use reasonable efforts to assist the Trustee in enforcing the obligations of the Sponsor under the Representations and Warranties Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2006-He6)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sellssell, transferstransfer, assignsassign, sets set over and otherwise conveys convey to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the assets of the Trust Fund.
. Such assignment includes all interest and principal received on or with respect to the Mortgage Loans on or after the Cut-off Date (bother than Scheduled Payments due on the Mortgage Loans on or before the Cut-off Date). It is agreed and understood by the Depositor, the Servicer and the Trustee 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; or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004. In connection with the transfer and assignment of each Mortgage Loansuch assignment, the Depositor has delivered or caused to be delivered to does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee for the benefit of the Certificateholders Trustee, the following documents or instruments with respect to each Mortgage Loan so assignedLoan:
(iA) the The original Mortgage Note, Note endorsed without recourse in blank by or, "Pay to the last endorseeorder of Xxxxx Fargo Bank, including N.A., as trustee, without recourse" together with all riders thereto. The Mortgage Note shall include all intervening endorsements showing a complete chain of endorsement the title from the originator Transferor to the last endorsee;[_________________].
(iiB) The Except as provided below and for each Mortgage Loan that is not a MERS Loan, the original Assignment recorded Mortgage together with all riders thereto, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the recording office, a 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 blankthe appropriate recording office of the jurisdiction in which the Mortgaged Property is located and in the case of each MERS Loan, unless 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.
(C) In the case of each Mortgage Loan that is not a MERS Loan;, the original Assignment of each Mortgage, endorsed either in blank or, to "Xxxxx Fargo Bank, N.A., as trustee."
(iiiD) 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).
(E) Originals of any intervening assignments of the Mortgage, with evidence of recording thereon or 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 and correct copy of the Mortgage original of the assignment which has been sent for recordationrecording in the appropriate jurisdiction in which the Mortgaged Property is located.
(F) Originals of all assumption and modification agreements, if any. If in connection with any Mortgage Loan, the Responsible Party Depositor cannot deliver the Mortgage, Assignments of Mortgage or cause to be delivered assumption, consolidation or modification, as the original Mortgage case may be, with evidence of recording thereon on or prior to thereon, if applicable, concurrently with the Closing Date execution and delivery of this Agreement solely because of a delay caused by the public recording office where such Mortgage, Assignments of Mortgage or assumption, consolidation or modification, as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying Trustee written notice stating that such Mortgage or assumption, consolidation or modification, as the case may be, has been dispatched delivered to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recordedThereafter, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party Depositor shall deliver or cause to be delivered to the CustodianTrustee such Mortgage, a photocopy Assignments of such intervening assignmentMortgage or assumption, together with (A) in consolidation or modification, as the case may be, with evidence of a delay caused by 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, an officer's certification the Depositor shall make or cause such endorsement to be made. With respect to any Mortgage Loan, none of the Responsible Party certifying Depositor, the Servicer, 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 referred to in this Section 2.01 is not recorded or is improperly recorded, the Servicer and the Trustee shall have no liability for any failure to receive or act on notices related to such Assignment of Mortgage. The ownership of each Mortgage Note, the Mortgage and the contents of the related Mortgage File is vested in the Trustee on behalf of the Certificateholders. Neither the Depositor nor the Servicer shall take any action inconsistent with such ownership and shall not claim any ownership interest therein. The Depositor and the Servicer shall respond to any third party inquiries with respect to ownership of the Mortgage Loans by stating that such intervening assignment ownership is held by the Trustee on behalf of mortgage has been dispatched the Certificateholders. Mortgage documents relating 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly Mortgage Loans not delivered to the Custodian upon receipt thereof Trustee are and shall be held in trust by the Responsible Party; or (B) Servicer, for the benefit of the Trustee as the owner thereof, and the Servicer's 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 Servicer, 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 case Mortgage Loans. It is 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 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 intervening assignment where 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 public recording office retains pledge, it is the original recorded intervening assignment 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 case where an intervening assignment is lost after recordation in a public recording officefirst paragraph of this Section 2.01, a copy of such intervening assignment certified by such public recording office the Depositor does hereby convey, assign and set over to be a true and complete copy the Trustee for the benefit of the original recorded intervening assignment;
(vii) Certificateholders its rights and interests under the original policy of primary mortgage guaranty insurance or certificate of insuranceSale Agreement, if applicable;
(viii) including the original lenderDepositor's right, title policy insurance or other evidence of title such as a copy and interest in the representations and warranties contained in the Sale Agreement, the rights in the Transfer Agreements described therein, and the benefit of the preliminary title commitmentrepurchase 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 Loan. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Sale Agreement as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Depositor, the Seller, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed other Person in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timeMortgage Loans or any other agreement or instrument relating thereto, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian except as to each Mortgage Loan shall constitute the "Custodial Filespecifically set forth herein."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, together with all rights of the Depositor under the Xxxx of Sale, the Assignment Agreement and the Aames Purchase Agreement (solely insofar as the Aames Purchase Agreement relates to the Mortgage Loans).
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage NoteNote bearing all intervening endorsements, endorsed "Pay to the order of _____________, without recourse recourse" and signed in blank the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, if state law so allows and the Trustee is so advised in writing by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator Originator (pursuant to the last endorseeAames Purchase Agreement) that state law so allows;
(ii) The the original Assignment of Mortgage any guaranty executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party Trustee shall notify the Originator to deliver or cause to be delivered to the CustodianTrustee, as required under the Aames Purchase Agreement, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying Originator or a certificate from an escrow company, a title company or closing attorney stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian Trustee upon receipt thereof by the Responsible PartyOriginator; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered Loan endorsed in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party Trustee shall deliver or cause notify the Originator, to be delivered to deliver, as required under the CustodianAames Purchase Agreement, a photocopy of such intervening assignment, together with (Ai) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the Responsible Party certifying Originator or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy 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 Custodian Trustee upon receipt thereof by the Responsible PartyOriginator; or (Bii) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or attorney's opinion of primary mortgage guaranty title and abstract of title, or, in the event such original title policy is unavailable, a certified true copy of the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicable;company; and
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided). The Depositor shall deliver cause to be delivered to the Custodian Trustee the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing AgreementDepositor or the Servicer, the Responsible Party may as applicable, shall forward to the Custodian Trustee additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian Trustee as to each Mortgage Loan shall constitute the "Custodial File." No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the recording information for a Mortgage, the Servicer shall promptly submit or cause to be submitted for recording at the expense of the Originator as required pursuant to the Aames Purchase Agreement and 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 Section 2.01(b)(v). Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be completed and submitted for recording with respect to any Mortgage Loan if the Trustee and each Rating Agency has received an opinion of counsel, satisfactory in form and substance to the Trustee and each Rating Agency, to the effect that the recordation of such Assignments in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to "Bankers Trust Company of California, N.A., as trustee under the Pooling and Servicing Agreement dated as of January 1, 2002, Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Trust 2002-AM1." In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Depositor shall promptly cause to be delivered a substitute assignment to cure such defect and thereafter cause each such assignment to be duly recorded. On or prior to the Closing Date, the Depositor shall deliver to the Trustee a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Trust 2002-Ami)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of August 2001); (ii) the Reserve Fund Deposit and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, except as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Person stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date because Trustee with evidence of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage indicated thereon or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy assignment with evidence of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageindicated thereon;
(iv) The original recorded assignment or assignments of the originals Mortgage showing an unbroken chain of all assumptiontitle from the originator to the Person assigning it to the Trustee (or to MERS, modification, consolidation or extension agreements, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recording thereonrecordation noted thereon or attached thereto, or certified true copies a copy of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law such assignment or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any any, relating to such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage Loan, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, each modification, consolidation assumption agreement or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."preferred loan agreement;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of August 2004); (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing. The Depositor, the Master Servicer and the Trustee agree that it is not intended that any mortgage loan be included in the Trust Fundthat is either (i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, except as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian that is the duly appointed agent of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the appropriate public office for real property records the Assignment referred to in clause(iii) of Section 2.01(b), except (a) in states where, in the Opinion of Counsel acceptable to the Trustee and the Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iiii), (iv) and (v) that may be delivered as a copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, 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 a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note and Mortgage, and any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RAMP Series 2004-Rs8 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, Trust Fund without recourse, all the right, title and interest of the Depositor in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans on or before the Cut-off Date) and its rights as purchaser under the Mortgage Loan Purchase Agreements with each Seller to the extent related to the Mortgage Loans.
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, except as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders Trustee, the following documents or instruments with respect to each Mortgage Loan so assigned:(or copies thereof as permitted by this Section):
(i) the The original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it in blank, or, in the event of any Mortgage Note, the original of which was permanently lost or destroyed and has not been replaced, a copy of a duplicate original of the Mortgage Note, together with an original lost note affidavit from the originator of the related Mortgage Loan stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording indicated thereon on or prior to a copy of the Closing Date because of a delay caused Mortgage certified by the public recording office where in which such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgagerecorded;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ba Mortgage Securities Inc/)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of January 2004); (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Policy, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan;
(iii) the original Mortgage, with evidence of recording thereon or or, if the original Mortgage has not yet been returned from the public recording office, a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or prior more blanket assignments if permitted by applicable law) of the Mortgage to the Closing Date Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian that is the duly appointed agent of the Trustee.
(c) In connection with any Mortgage Loan, if the Depositor cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the appropriate public office for real property records the Assignment referred to in clause(iii) of Section 2.01(b), except (a) in states where, in the Opinion of Counsel acceptable to the Trustee, the Insurer and the Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iiii), (iv) and (v) that may be delivered as a copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, 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 a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note and Mortgage, and any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or 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 Uniform Commercial Code as in effect in the States of New York and Minnesota and any other applicable jurisdiction; 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute the "Custodial FileLoan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date; and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer delivery of this Agreement, and assignment of each Mortgage Loanexcept as set forth in Section 2.01(c) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section)
(I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original 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 or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the Assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement; and and (II) with respect to each Cooperative Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original A counterpart of the Cooperative Lease and the Assignment of Mortgage in blank, unless Proprietary Lease to the Mortgage originator of the Cooperative Loan is a MERS Loanwith intervening assignments showing an unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the original Mortgage, related Cooperative Stock pledged with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage respect to such Cooperative Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with an undated stock power (ior other similar instrument) executed in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageblank;
(iv) The original recognition agreement by the originals Cooperative of all assumption, modification, consolidation or extension agreements, the interests of the mortgagee with evidence of recording thereon, or certified true copies of any document sent for recordationrespect to the related Cooperative Loan;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"Security Agreement;
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the applicable Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blankblank (or, in the case of the Goldman Conduit Mortgage Loans, in form and substance acceptable for recording or if the Mortgage is to be recorded, assigned to the Purchaser), unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgagepersonal endorsement, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If surety and/or guaranty agreements executed in connection with any all non individual Mortgage LoanLoans (corporations, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagepartnerships, the Responsible Party shall deliver or cause to be delivered to the Custodiantrusts, a photocopy of such Mortgageestates, together with etc. (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgageif any);
(iv) the related original Mortgage and evidence of its recording or a certified copy of the Mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified copies in either case necessary to show a complete chain of title from the original mortgagee to the seller and evidencing recording; provided, that, except in the case of the Goldman Conduit Mortgage Loans, the assignment may be in the form of a blanket assignment or assignments, a copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or extension agreementsagreements or certified copies thereof, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) if required to maintain the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion lien of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only mortgage or if otherwise required, or, if recordation is either necessary under applicable law not required, an original or commonly required by private institutional mortgage investors copy of the agreement; provided, that, in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments case of the Goldman Conduit Mortgage Loans, an original with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment thereon is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentalways required;
(vii) if applicable to the files held by the applicable Custodian, an original or copy of a title insurance policy or evidence of primary mortgage guaranty insurance or certificate of insurance, if applicabletitle;
(viii) to the extent applicable, an original lender's title policy insurance or other evidence power of title such as a copy of the preliminary title commitment, or a copy thereof; andattorney;
(ix) any for each Mortgage Loan (if applicable to the files held by the applicable Custodian) with respect to which the Mortgagor’s name as it appears on the note does not match the borrower’s name on the Mortgage Loan Schedule, one of the following: the original of the assumption agreement, or a certified copy thereof, in either case with evidence of recording thereon if required to maintain the lien of the mortgage or if otherwise required, or, if recordation is not so required, an original or copy of such assumption agreement;
(x) if applicable to the files held by the applicable Custodian, a security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Custodial File including all items as set forth in the applicable Servicing Agreement to the extent in the possession of the Depositor or the Depositor’s Agents. The Depositor shall deliver or cause each Responsible Party to the deliver to each Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing applicable Sale Agreement, the Responsible Party may forward to the applicable Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing applicable Sale Agreement. All such mortgage documents held by the Custodian Custodians as to each Mortgage Loan shall constitute the "“Custodial File."” On or prior to the Closing Date, the Depositor shall deliver to the Custodians Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. On the Closing Date, the Depositor shall provide a written request to each Responsible Party to submit the Assignments of Mortgage for recordation, at the Responsible Party’s expense, pursuant to the applicable Sale Agreement. Each Custodian shall deliver the Assignment of Mortgages to be submitted for recordation to the applicable Responsible Party upon receipt of a written request for release in standard and customary form as set forth in Exhibit L-1, Exhibit L-2, Exhibit L-3 or Exhibit L-4, as applicable. On or prior to the Closing Date, the Depositor shall deliver to the Custodians and the Master Servicer a copy of the Mortgage Loan Schedule in electronic, machine readable medium in a form mutually acceptable to the Depositor, the applicable Custodian, the Master Servicer and the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within the time period and in the manner specified in the applicable Sale Agreement, the Trustee shall take or cause to be taken such remedial actions under the Sale Agreement against the applicable Responsible Party as may be permitted to be taken thereunder, including without limitation, if applicable, the repurchase by the applicable Responsible Party of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the applicable Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an Officer’s Certificate of an officer of the applicable Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Responsible Party shall be deemed to have been satisfied upon delivery by the Responsible Party to the applicable Custodian prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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”) to be known, for convenience, as “GSAA Home Equity Trust 2007-7” and U.S. Bank is hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the Mortgage Loans included in the Trust is (a) covered by the Home Ownership and Equity Protection Act of 1994, or (b) considered a “high cost home,” “threshold,” “predatory” or “covered” loan (excluding “covered home loans” as defined under clause (1) of the definition of “covered home loans” in the New Jersey Home Ownership Security Act of 2002) under applicable state, federal or local laws.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSAA Home Equity Trust 2007-7)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund. On the Closing Date, the Depositor shall pay, without any right of reimbursement from the Trust, to the Cap Provider the "Fixed Amount" (as defined in the Cap Agreement) due and payable to the Cap Provider pursuant to the terms of the Cap Agreement.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________, without recourse" and signed (which may be by facsimile signature) in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsement may be contained on an allonge, unless state law does not so allow and the Custodian is so advised in writing by the applicable Responsible Party that state law does not so allow;
(ii) The the original Assignment of Mortgage any guarantee executed in blank, unless connection with the Mortgage Loan is a MERS LoanNote;
(iii) the original Mortgage, Mortgage with evidence of recording thereon or a certified true and correct copy of the such Mortgage sent submitted for recordationrecording. If If, in connection with any Mortgage Loan, the Responsible Party original Mortgage cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the applicable Responsible Party shall deliver or cause to be delivered to the Custodian, Custodian a photocopy of such Mortgage, together with (iA) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the applicable Responsible Party certifying (or certified by the title company, escrow agent, or closing attorney) stating that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney such public recording office to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the applicable Responsible Party; or (iiB) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or and extension agreements, if any, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, Loan endorsed in form and substance acceptable for recording blank (except for the insertion of the name of the assignee and recording informationwith respect to MERS Designated Loans). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) the originals or certified true copies of documents sent for recordation of all intervening assignments of Mortgage (if any) evidencing a complete chain of assignment from the Mortgage applicable originator to the last endorsee (or, in the case of a MERS Designated Loan, MERS) with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgageMortgage, the applicable Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officerOfficer's certification Certificate of the applicable Responsible Party certifying or a certificate from an escrow company, a title company or a closing attorney stating that such intervening assignment of mortgage Mortgage has been dispatched to the appropriate public recording office for recordation and that such original recorded intervening assignment of mortgage Mortgage or a copy of such intervening assignment of mortgage Mortgage certified by the escrow agent, or closing attorney or by the title insurance company that issued the title policy appropriate public recording office to be a true and complete copy of the original recorded intervening assignment of mortgage Mortgage will be promptly delivered to the Custodian upon receipt thereof by the applicable Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or, in the event such original title policy is unavailable, a copy of primary mortgage guaranty the title policy, certified by the applicable Responsible Party, or certified true copy of the related policy binder or commitment for title certified to be true and complete by the title insurance or certificate of insurance, if applicablecompany;
(viii) the original lender's title policy insurance or other evidence of title such as or, if unavailable, a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the MortgageMortgage (if provided); and
(ix) if any of the above documents has been executed by a person holding a power of attorney, an original or photocopy of such power certified by the applicable Responsible Party to be a true and correct copy of the original. The Depositor shall deliver To the extent not previously delivered to the Custodian Sponsor pursuant to the related Purchase Agreement, the applicable recorded document Responsible Party shall promptly upon receipt from the respective recording office but cause to be delivered to the Custodian the original recorded document described in no event later than 240 days from the Closing Date(iii), (iv) and (vi) above. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreementapplicable Responsible Party, the Responsible Party may Depositor or the Servicer, as applicable, shall forward to the Custodian Custodian, additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing Agreementthis Agreement upon receipt of such documents. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File." To the extent not previously delivered to the Sponsor pursuant to this Agreement, on or prior to the Closing Date, each Responsible Party shall deliver to the Custodian, Assignments of Mortgages, in blank, for each Mortgage Loan that is not a MERS Designated Loan. No later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the complete recording information for a Mortgage, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the applicable Responsible Party and at no expense to the Trust Fund, the Custodian, the Servicer or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(v). 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 (i) if the Custodian, the Trustee and each Rating Agency have received an Opinion of Counsel, satisfactory in form and substance to the Custodian, the Trustee and each Rating Agency to the effect that the recordation of such Assignments of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Designated Mortgage Loan or (iii) if the Rating Agencies have each notified the Depositor and the Servicer in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any LIBOR Certificates to be downgraded or withdrawn; provided, however, that the Servicer shall not be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent the Servicer does not have prior knowledge of the act or omission that causes such loss. Unless the Depositor gives the Servicer notice to the contrary, the Depositor is deemed to have given the Servicer notice that the condition set forth in clause (iii) above is applicable. In addition to the foregoing, the Servicer shall cause each Assignment of Mortgage to be recorded in accordance with Accepted Servicing Practices in order to convey, upon foreclosure, the title of any Mortgaged Property to the Trust as set forth in Section 3.17 hereof. If the Assignment of Mortgage is to be recorded, the applicable Mortgage shall be assigned by the applicable Responsible Party, at the expense of such Responsible Party to "Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of January 1, 2007, Securitized Asset Backed Receivables LLC Trust 2007-HE1." In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the applicable Responsible Party shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded at no expense to the Trust Fund. On or prior to the Closing Date, the Depositor shall deliver to the Trustee and the Custodian a copy of the Data Tape Information in electronic, machine readable medium in a form mutually acceptable to the Depositor, the Trustee and the Custodian. Within ten (10) Business Days of the Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the Custodian and the Trustee. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within 180 days (or such other time period as may be required by any Rating Agency) following the Closing Date, and in the event that the applicable Responsible Party does not cure such failure within 30 days of discovery or receipt of written notification of such failure from the Depositor, the related Mortgage Loan shall, upon the request of the Depositor, be repurchased by such Responsible Party at the price and in the manner specified in Section 2.03. The foregoing repurchase obligation shall not apply in the event that the applicable Responsible Party cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that such Responsible Party shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of such Responsible Party, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the applicable Responsible Party shall be deemed to have been satisfied upon delivery by the applicable Responsible Party to the Custodian, prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "Securitized Asset Backed Receivables LLC Trust 2007-HE1" 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, including without limitation, the representation and warranty set forth in paragraph (aaa) of Schedule III and paragraph (ccc) of Schedule V. The Trust's fiscal year is the calendar year.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans, the Interest Rate Swap Agreement and the Cap Agreement) pursuant to Section 2.01(a). The Trustee on behalf of the Trust is hereby authorized to enter into the Interest Rate Swap Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Securitized Asset Backed Receivables LLC Trust 2007-He1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of October 2001), but excluding any Arrearages and any payments in respect thereof; (ii) the Reserve Fund Deposit; and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the transfer and assignment delivery of each Mortgage Loanthis Agreement, the Depositor has delivered or caused to be delivered hereunder to the Custodian on behalf Trustee the Policy, and except as set forth in Section 2.01(c) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) (I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original 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 or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon;
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement; and and (II) with respect to each Cooperative Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of Proprietary Lease to the originator of the Cooperative Loan with intervening assignments showing an unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the related Cooperative Stock pledged with respect to such Cooperative Loan, together with an undated stock power (or other similar instrument) executed in blank blank;
(iv) The original recognition agreement by the last endorseeCooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, including all intervening endorsements and any continuation statements, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security interest referenced in clause (vi) above showing a complete an unbroken chain of endorsement title from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blankTrustee, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, each with evidence of recording thereon thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the originator in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement referenced in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee;
(ix) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Cooperative Loan; and
(x) A duly completed UCC-1 financing statement showing the Master Servicer as debtor, the Company as secured party and the Trustee as assignee and a certified true duly completed UCC-1 financing statement showing the Company as debtor and correct copy the Trustee as secured party, each in a form sufficient for filing, evidencing the interest of such debtors in the Cooperative Loans. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(I)(ii), (iii), (iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(I)(ii), (iii), (iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage sent for recordation. If in Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) In connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (I)(iii) of such Mortgage certified by the title companySection 2.01(b), escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or except (iia) in the case of a Mortgage where a public recording office retains the original recorded Mortgage or states where, in the case where a Mortgage is lost after recordation in a public recording office, a copy opinion of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance counsel acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If , the Assignment of Mortgage Insurer and the Master Servicer, such recording is not required to be recorded, protect the Assignment of Mortgage shall be delivered Trustee's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereonrecord solely as nominee for Residential Funding and its successors and assigns, and shall promptly cause to be filed the Form UCC-3 assignment and UCC-1 financing statement referred to in clause (II)(vii) and (x), respectively, of Section 2.01(b). If any Assignment, Form UCC-3 or Form UCC-1, as applicable, is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as applicable, or if any cure such intervening assignment has not been returned from defect, as the applicable recording office case may be, and cause such Assignment, Form UCC-3 or has been lost or if such public recording office retains the original Form UCC-1, as applicable, to be recorded assignments of mortgage, the Responsible Party in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, Form UCC-3 or Form UCC-1, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer. In connection with its servicing of Cooperative Loans, the Master Servicer will use its best efforts to file timely continuation statements with regard to each financing statement and assignment relating to Cooperative Loans as to which the related Cooperative Apartment is located outside of the State of New York. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(I)(ii), (iii), (iv) and (v) and (II)(vi) and (vii) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held conveyances by the Custodian Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be 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 of Residential Funding, 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 conveyances provided for in this Section 2.01 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 (i) with respect to each Cooperative Loan, the related Mortgage Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock Certificate and Cooperative Lease, (ii) with respect to each Mortgage Loan other than a Cooperative Loan, the related Mortgage Note and Mortgage, and (iii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any and all general intangibles consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B) and (C) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, negotiable documents or chattel paper shall constitute be deemed to be "possession by the "Custodial Filesecured party," or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Section 9-115, 9-305, 8-102, 8-301, 8-501, 8-503, 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, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans as evidenced by an Officers' Certificate of the Depositor, with a copy delivered to the Insurer, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by (1) any change of name of Residential Funding, the Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor or (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of January 2003).
(b) In connection with the transfer such assignment, except as set forth in Section 2.01(c) below and assignment of each Mortgage Loansubject to Section 2.01(d) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System an original Mortgage, Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement;
(c) The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of each of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(ii), (iii), (iv) and (v) which has been delivered to it by the Depositor.
(d) Notwithstanding the provisions of Section 2.01(c), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by the title companySection 2.01(b), escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or except (iia) in the case of a Mortgage where a public recording office retains the original recorded Mortgage or states where, in the case where a Mortgage is lost after recordation in a public recording office, a copy opinion of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance counsel acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If , the Assignment of Mortgage Insurer and the Master Servicer, such recording is not required to be recorded, protect the Assignment of Mortgage shall be delivered Trustee's interests in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If or (b) if MERS is identified on the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments on a properly recorded assignment of the Mortgage with evidence as the mortgagee of recording thereon, or if record solely as nominee for Residential Funding and its successors and assigns. If any such intervening assignment has not been returned from the applicable recording office or has been Assignment is lost or if such public recording office retains returned unrecorded to the original recorded assignments Depositor because of mortgageany defect therein, the Responsible Party Depositor shall prepare a substitute Assignment or cure such defect, as the case may be, and cause such Assignment to be recorded in accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment (or copy thereof as permitted by Section 2.01(b)) with evidence of recording indicated thereon at the time specified in Section 2.01(c). If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(e) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, and 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 Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, with a copy delivered to the Insurer, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before the Cut-off Date). The foregoing sale, transfer, assignment and set over does not and is not intended to result in a creation of an assumption by the Trustee of any obligation of the Depositor or any other Person in connection with the Mortgage Loans or any agreement or instrument relating thereto, except as specifically set forth herein.
(b) In connection with the such transfer and assignment of each Mortgage Loanassignment, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee Trustee, for the benefit of the Certificateholders Certificateholders, the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile signature in the following form: "Pay to the order of Wells Fargo Bank Minnesota, National Association, as trustee for xxxxxrs of the Banc of America Alternative Loan Trust 2003-6 Mortgage Pass-Through Certificates, Series 2003-6, without recourse in blank by the last endorsee, including recourse," with all necessary intervening endorsements showing a complete chain of endorsement from the originator to the last endorseeTrustee (each such endorsement being sufficient to transfer all right, title and interest of the party so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note);
(ii) The original Assignment of Mortgage in blankexcept as provided below, unless the Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original recorded Mortgage with evidence of a recording thereon on thereon, or prior to the Closing Date because of a delay caused by the public recording office where if any such Mortgage has not been delivered for recordation returned from the applicable recording office or because such Mortgage has been lost lost, or because if such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title companyDepositor as being a true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, escrow agenta duly executed Assignment of Mortgage to "Wells Fargo Bank Minnesota, National Association, as trustee for xxx xolders of the Banc of America Alternative Loan Trust 2003-6 Mortgage Pass-Through Certificates, Series 2003-6" (which may be included in a blanket assignment or closing attorney to be assignments), together with, except as provided below, originals of all interim recorded assignments of such mortgage or a copy of such interim assignment certified by the Depositor as being a true and complete copy of the original recorded intervening assignments of Mortgage will (each such assignment, when duly and validly completed, to be promptly delivered in recordable form and sufficient to effect the assignment of and transfer to the Custodian upon receipt thereof by assignee thereof, under the Responsible PartyMortgage to which the assignment relates); or (ii) in provided that, if the case of a related Mortgage where a public recording office retains has not been returned from the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a applicable public recording office, a copy such Assignment of such Mortgage certified by such public recording office or may exclude the information to be provided by the title insurance company that issued recording office; and provided, further, if the title policy related Mortgage has been recorded in the name of Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor of the Trustee will be required to be a true prepared or delivered and complete copy instead, the Servicer shall take all actions as are necessary to cause the Trust to be shown as the owner of the original recorded Mortgagerelated Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or extension agreements, if any, with evidence of recording thereon, or certified true copies of any document sent for recordationif any;
(v) the original Assignment or duplicate original mortgagee title insurance policy and all riders thereto;
(vi) the original of any guarantee executed in connection with the Mortgage Note;
(vii) for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion if any, which is secured by a residential long-term lease, a copy of the name lease with evidence of recording indicated thereon, or, if the lease is in the process of being recorded, a photocopy of the assignee and recording information). The Assignment lease, certified by an officer of the respective prior owner of such Mortgage must be duly recorded only if recordation is either necessary under Loan or by the applicable law title insurance company, closing/settlement/escrow agent or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is company or closing attorney to be recorded, a true and correct copy of the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]"lease transmitted for recordation;
(viviii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of recording thereon; 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). provided, however, that on the Closing Date, with respect to item (iii), the Depositor has delivered to the Trustee a copy of such Assignment of Mortgage in blank and has caused the Servicer to retain the completed Assignment of Mortgage for recording as described below, unless such Mortgage has been recorded in the name of MERS or its designee. In addition, if the Depositor is unable to deliver or cause the delivery of any original Mortgage Note due to the loss of such original Mortgage Note, the Depositor may deliver a copy of such Mortgage Note, together with a lost note affidavit, and shall thereby be deemed to have satisfied the document delivery requirements of this Section 2.01(b). As set forth on Exhibit L attached hereto is a list of all states where recordation is required by either Rating Agency to obtain the initial ratings of the Certificates. The Trustee may rely and shall be protected in relying upon the information contained in such Exhibit L. If in connection with any Mortgage Loans, the Depositor cannot deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all assumption, modification, consolidation or extension agreements, if any, or if any (D) the lender's title policy (together with all riders thereto) satisfying the requirements of clause (ii), (iii), (iv) or (v) above, respectively, concurrently with the execution and delivery hereof because such intervening assignment has document or documents have not been returned from the applicable recording office or has been lost or if such public recording office retains in the original recorded assignments case of mortgageclause (ii), (iii) or (iv) above, or because the title policy has not been delivered to either the Servicer or the Depositor by the applicable title insurer in the case of clause (v) above, the Responsible Party Depositor shall promptly deliver or cause to be delivered to the CustodianTrustee or the Custodian on behalf of the Trustee, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording officeclause (ii), an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; (iii) or (Biv) in the case of an intervening assignment where a public recording office retains the original recorded intervening above, such Mortgage, such interim assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension agreement, as the case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office, but in no event shall any such delivery of any such documents or instruments be made later than one year following the Closing Date, unless, in the case of clause (ii), (iii) or (iv) above, there has been a continuing delay at the applicable recording office or, in the case of clause (v), there has been a continuing delay at the applicable insurer and the Depositor has delivered the Officer's Certificate to such effect to the Trustee. The Depositor shall forward or cause to be forwarded to the Trustee (1) from time to time additional original documents evidencing an assumption or modification of a Mortgage Loan approved and (2) any other documents required to be delivered by the Responsible PartyDepositor or the Servicer to the Trustee or the Custodian on the Trustee's behalf. In the event that the original Mortgage is not delivered and in connection with the payment in full of the related Mortgage Loan the public recording office requires the presentation of a "lost instruments affidavit and indemnity" or any equivalent document, because only a copy of the Mortgage can be delivered with the instrument of satisfaction or reconveyance, the Servicer shall prepare, execute and deliver or cause to be prepared, executed and delivered, on behalf of the Trust, such a document to the public recording office. As promptly as practicable subsequent to such transfer and assignment, and in any event, within 30 days thereafter, the Servicer shall (except for any Mortgage which has been recorded in the name of MERS or its designee) (I) cause each Assignment of Mortgage to be in proper form for recording in the appropriate public office for real property records within 30 days of the Closing Date and (II) at the Depositor's expense, cause to be 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 Assignment of a 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 30 days after the receipt thereof and, no recording of an Assignment of Mortgage will be required in a state if either (i) the Depositor furnishes to the Trustee an unqualified Opinion of Counsel reasonably acceptable to the Trustee to the effect that recordation of such assignment is not necessary under applicable state law to preserve the Trustee's interest in the related Mortgage Loan against the claim of any subsequent transferee of such Mortgage Loan or any successor to, or creditor of, the Depositor or the originator of such Mortgage Loan or (ii) the recordation of an Assignment of Mortgage in such state is not required by either Rating Agency in order to obtain the initial ratings on the Certificates on the Closing Date. In the case of Mortgage Loans that have been prepaid in full as of the Closing Date, the Depositor, in accordance with lieu of delivering the terms of above documents to the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by Trustee, or the Custodian as on the Trustee's behalf, will cause the Servicer to each Mortgage Loan shall constitute deposit in the "Servicer Custodial FileAccount the portion of such payment that is required to be deposited in the Servicer Custodial Account pursuant to Section 3.08."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Alternative Loan Trust 2003-6)
Conveyance of Mortgage Loans. (a) The DepositorCompany, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor Company in and to the Trust FundMortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans on or before the Cut-off Date).
(b) In connection with the transfer and assignment of each Mortgage Loansuch assignment, except as set forth in Section 2.01(c) below, the Depositor has delivered Company does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) (I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Mortgage 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;
(iii) An original Assignment of the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of such assignment certified by the public recording office in which such assignment has been recorded;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken chain of title from the originator thereof to the Person assigning it to the Trustee or a copy of such assignment or assignments of the Mortgage certified by the public recording office in which such assignment or assignments have been recorded; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan or a copy of each modification, assumption agreement or preferred loan agreement certified by the public recording office in which such document has been recorded. and (II) with respect to each Cooperative Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of Proprietary Lease to the originator of the Cooperative Loan with intervening assignments showing an unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the related Cooperative Stock pledged with respect to such Cooperative Loan, together with an undated stock power (or other similar instrument) executed in blank blank;
(iv) The original recognition agreement by the last endorseeCooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, including all intervening endorsements and any continuation statements, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security interest referenced in clause (vi) above showing a complete an unbroken chain of endorsement title from the originator to the last endorseeTrustee, each with evidence of recording thereof, evidencing the interest of the originator under the Security Agreement and the Assignment of Proprietary Lease;
(iiviii) An executed assignment of the interest of the originator in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement referenced in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee;
(ix) The original Assignment of each modification, assumption agreement or preferred loan agreement, if any, relating to such Cooperative Loan; and
(x) An executed UCC-1 financing statement showing the Master Servicer as debtor, the Company as secured party and the Trustee as assignee and an executed UCC-1 financing statement showing the Company as debtor and the Trustee as secured party, each in a form sufficient for filing, evidencing the interest of such debtors in the Cooperative Loans.
(c) The Company may, in lieu of delivering the documents set forth in Section 2.01(b)(I)(iv) and (v) and Section 2.01(b)(II)(ii), (iv), (vii), (ix) and (x) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use and benefit of all present and future Certificateholders until such time as is set forth below. Within ten Business Days following the earlier of (i) the receipt of the original of each of the documents or instruments set forth in Section 2.01(b)(I)(iv) and (v) and Section 2.01(b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by such Section) for any Mortgage in blank, unless Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loan Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee. On the Closing Date, the Master Servicer shall certify that it has in its possession an original or copy of each of the documents referred to in Section 2.01(b)(I)(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) which has been delivered to it by the Company. Every six months after the Closing Date, for so long as the Master Servicer is a MERS Loan;
holding documents pursuant to this Section 2.01(c), the Master Servicer shall deliver to (i) Moody's if it is one of the Rating Agencies, (ii) the Trustee and (iii) each Custodian a report setting forth the original status of the documents which it is holding.
(d) In the event that in connection with any Mortgage Loan the Company cannot deliver the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof certified by the public recording office) with evidence of recording thereon or a certified true concurrently with the execution and correct copy delivery of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date this Agreement solely because of a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgagerecordation, the Responsible Party Company shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a true and correct photocopy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Company shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation real property records the Assignment referred to in clause (I)(iii) of Section 2.01(b), except in states where, in the opinion of counsel acceptable to the Trustee and that the original recorded Master Servicer, such recording is not required to protect the Trustee's interests in the Mortgage Loan against the claim of any subsequent transferee or a copy any successor to or creditor of the Company or the originator of such Mortgage certified by Loan and shall promptly cause to be filed the title companyForm UCC-3 assignment and UCC-1 financing statement referred to in clause (II)(vii) and (x), escrow agentrespectively, of Section 2.01(b). If any Assignment, Form UCC-3 or Form UCC-1, as applicable, is lost or returned unrecorded to the Company because of any defect therein, the Company shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as applicable, or closing attorney cure such defect, as the case may be, and cause such Assignment to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, accordance with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information)this paragraph. The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage Company shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall promptly deliver or cause to be delivered to the CustodianTrustee or the respective Custodian such Mortgage or assignment or Form UCC-3 or Form UCC-1, a photocopy of such intervening assignmentas applicable, together with (A) in the case of a delay caused or copy thereof certified by the public recording office, an officer's certification ) with evidence of recording indicated thereon upon receipt thereof from the Responsible Party certifying that such intervening assignment of mortgage has been dispatched to the appropriate public recording office for recordation or from the related Subservicer. In connection with its servicing of Cooperative Loans, the Master Servicer will use its best efforts to file timely continuation statements with regard to each financing statement and assignment relating to Cooperative Loans as to which the related Cooperative Apartment is located outside of the State of New York. In the event that the Company delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Company shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee within 45 days after the Closing Date, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(I)(iv) and (v) and (II)(vi) and (vii) and that such original recorded intervening assignment of mortgage or may be delivered as a copy of such intervening assignment of mortgage certified rather than the original may be delivered in microfiche form.
(e) It is intended that the conveyances by the escrow agent, or closing attorney or Company to the Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed as a sale by the title insurance company Company to the Trustee of the Mortgage Loans for the benefit of the Certificateholders. Further, it is not intended that issued the title policy any such conveyance be deemed to be a true and complete copy pledge of the original recorded intervening assignment of mortgage will be promptly delivered Mortgage Loans by the Company to the Custodian upon receipt thereof by Trustee to secure a debt or other obligation of the Responsible Party; or (B) Company. However, in the case event that the Mortgage Loans are held to be property of an intervening assignment where the Company or of Residential Funding, or if for any reason this Agreement is held or deemed to create a public recording office retains the original recorded intervening assignment or security interest in the case where an intervening assignment Mortgage Loans, then it is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office intended that (a) this Agreement shall also be deemed to be a true and complete copy security agreement within the meaning of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; Articles 8 and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgage. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to time, pursuant to the Master Seller's Warranties and Servicing Agreement, the Responsible Party may forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible Party, in accordance with the terms of the Master Seller's Warranties and Servicing Agreement. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Funding Mortgage Securities I Inc)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby sells, transfers, assigns, sets over and otherwise conveys assign to the Trustee for the benefit of the Certificateholders, without recourse, recourse all the right, title and interest of the Depositor in and to (i) the Mortgage Loans, including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in the month of September 2005); and (ii) all proceeds of the foregoing. In addition, on the Closing Date, the Trustee is hereby directed to enter into the Swap Agreement on behalf of the Trust FundFund with the Swap Counterparty.
(b) In connection with such assignment, and contemporaneously with the transfer delivery of this Agreement, except as set forth in Section 2.01(c) below and assignment of each Mortgage Loansubject to Section 2.01(d) below, the Depositor has delivered does hereby deliver to, and deposit with, the Trustee, or caused to be delivered to and with one or more Custodians, as the Custodian on behalf duly appointed agent or agents of the Trustee for the benefit of the Certificateholders such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) the The original Mortgage Note, endorsed without recourse in blank by to the last endorsee, including all intervening endorsements order of the Trustee and showing a complete an unbroken chain of endorsement endorsements from the originator thereof to the last endorseePerson endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Assignment Mortgage, noting the presence of the MIN of the Mortgage in blank, unless Loan and language indicating that the Mortgage Loan is a MERS MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the original MortgageMortgage Loan is registered on the MERS(R) System, the assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage to the Trustee with evidence of recording indicated thereon or a certified true and correct copy of such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage sent showing an unbroken chain of title from the originator to the Person assigning it to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN) with evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments of the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to such Mortgage Loan, or a copy of each modification, assumption agreement or preferred loan agreement. The Depositor may, in lieu of delivering the original of the documents set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for recordationthe use and benefit of all present and future Certificateholders until such time as is set forth in the next sentence. If Within thirty Business Days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection with any Mortgage Loan, if the Responsible Party Depositor cannot deliver or cause to be delivered the original Mortgage of the Mortgage, any assignment, modification, assumption agreement or preferred loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon on or prior to concurrently with the Closing Date execution and delivery of this Agreement because of (i) a delay caused by the public recording office where such Mortgage Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has been delivered for recordation recordation, or because such Mortgage has been lost or because such public recording office retains (ii) a delay in the original recorded Mortgagereceipt of certain information necessary to prepare the related assignments, the Responsible Party Depositor shall deliver or cause to be delivered to the Custodian, Trustee or the respective Custodian a photocopy copy of such Mortgage, together with (i) assignment, modification, assumption agreement or preferred loan agreement. The Depositor shall promptly cause to be recorded in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that real property records the original recorded Mortgage or a copy Assignment referred to in clause (iii) of such Mortgage certified by Section 2.01(b), except (a) in states where, in the title company, escrow agent, or closing attorney to be a true and complete copy Opinion of the original recorded Mortgage will be promptly delivered Counsel acceptable to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage where a public Master Servicer, such recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy not required to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to protect the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered 's interests in blank. If the Mortgage Loan was acquired by or (b) if MERS is identified on the Responsible Party in Mortgage or on a mergerproperly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute Assignment of Mortgage must or cure such defect, as the case may be, and cause such Assignment to be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for recordation of all intervening assignments of the Mortgage recorded in accordance with evidence of recording thereon, or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party this paragraph. The Depositor shall promptly deliver or cause to be delivered to the Trustee or the respective Custodian such Mortgage or Assignment, as applicable (or copy thereof as permitted by Section 2.01(b)), with evidence of recording indicated thereon upon receipt thereof from the public recording office or from the related Subservicer or Seller. If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim Certification issued by the Custodian, as contemplated by Section 2.02. Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be delivered as a photocopy copy rather than the original may be delivered to the Trustee or the Custodian. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days after the Closing Date, the MERS(R) System to indicate that such intervening assignmentMortgage 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, together with (A) in the case of a delay caused by Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the public recording office, an officer's certification code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched 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 escrow agent, or closing attorney or by the title insurance company that Certificates issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other evidence of title such as a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed in connection with the Mortgagesuch Mortgage Loans. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 days from the Closing Date. From time to timefurther agrees that it will not, pursuant to and will not permit the Master Seller's Warranties Servicer to, and Servicing Agreementthe Master Servicer agrees that it will not, alter the Responsible Party may forward codes referenced in this paragraph with respect to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a any Mortgage Loan approved by during the Responsible Party, term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the Master Sellerconveyances by the Depositor to the Trustee of the Mortgage Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby is 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 conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's Warranties right (including the power to convey title thereto), title and Servicing interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans or the Swap Agreement in accordance with the terms thereof, (C) any Uncertificated Regular Interests and any and all general intangibles, payment intangibles, accounts, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property and other property of whatever kind or description now existing or hereafter acquired consisting of, arising from or relating to any of the foregoing, 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 Depositor to the Trustee of any security interest in any and all of Residential Funding'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), (B), (C) and (D) granted by Residential Funding to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or such other items of property as constitute instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of credit, advices of credit, investment property, certificated securities 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 Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313 and 9-106 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, securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and, at the Depositor's direction, Residential Funding and the Trustee shall, to the extent consistent with this Agreement, take such reasonable 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 Regular Interests and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. All Without limiting the generality of the foregoing, the Depositor shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and, the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee's security interest in or lien on the Mortgage Loans and the Uncertificated Regular Interests, as evidenced by an Officers' Certificate of the Depositor, including without limitation (x) continuation statements, and (y) such mortgage documents held other statements as may be occasioned by (1) any change of name of Residential Funding, the Custodian as to each Depositor or the Trustee (such preparation and filing shall be at the expense of the Trustee, if occasioned by a change in the Trustee's name), (2) any change of location of the place of business or the chief executive office of Residential Funding or the Depositor, (3) any transfer of any interest of Residential Funding or the Depositor in any Mortgage Loan shall constitute or (4) any transfer of any interest of Residential Funding or the "Custodial FileDepositor in any Uncertificated Regular Interests."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RASC Series 2005-Ahl1 Trust)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian on behalf of the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank by the last endorsee, including all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee;
(ii) The the original Assignment of Mortgage in blankblank (except if recorded), unless the Mortgage Loan is a MERS Mortgage Loan;
(iii) the related original MortgageMortgage and evidence of its recording or, in certain limited circumstances, a certified copy of the mortgage with evidence of recording thereon or a certified true and correct copy of the Mortgage sent for recordation. If in connection with any Mortgage Loan, the Responsible Party cannot deliver or cause to be delivered the original Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Mortgage has been delivered for recordation or because such Mortgage has been lost or because such public recording office retains the original recorded Mortgage, the Responsible Party shall deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such Mortgage has been dispatched to the appropriate public recording office for recordation and that the original recorded Mortgage or a copy of such Mortgage certified by the title company, escrow agent, or closing attorney to be a true and complete copy of the original recorded Mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; or (ii) in the case of a Mortgage 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, a copy of such Mortgage certified by such public recording office or by the title insurance company that issued the title policy to be a true and complete copy of the original recorded Mortgagerecording;
(iv) the except with respect to a MERS Loan, originals of any intervening Mortgage assignment or certified copies in either case evidencing recording;
(v) originals of all assumptionassumption or modification agreements or certified copies thereof, modification, consolidation or extension agreements, in either case with evidence of recording thereon, or certified true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information). The Assignment of Mortgage must be duly recorded only if recordation is either necessary under applicable law or commonly required by private institutional mortgage investors in the area where the Mortgaged Property is located as notified to the Custodian. If the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to the Trustee. If the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the Responsible Party in a merger, the Assignment of Mortgage must be made by "[Responsible Party], successor by merger to [name of predecessor]." If the Mortgage Loan was acquired or originated by the Responsible Party while doing business under another name, the Assignment of Mortgage must be by "[Responsible Party], formerly know as [previous name]";
(vi) originals an original or copy of a title insurance policy or, in the event such title policy is unavailable, a certified true copies of documents sent for recordation of all intervening assignments copy of the Mortgage with evidence of recording thereon, related policy binder or if any such intervening assignment has not been returned from the applicable recording office or has been lost or if such public recording office retains the original recorded assignments of mortgage, the Responsible Party shall deliver or cause commitment for title certified to be delivered to the Custodian, a photocopy of such intervening assignment, together with (A) in the case of a delay caused by the public recording office, an officer's certification of the Responsible Party certifying that such intervening assignment of mortgage has been dispatched to the appropriate public recording office for recordation true and that such original recorded intervening assignment of mortgage or a copy of such intervening assignment of mortgage certified by the escrow agent, or closing attorney or complete by the title insurance company that issued the title policy to be a true and complete copy of the original recorded intervening assignment of mortgage will be promptly delivered to the Custodian upon receipt thereof by the Responsible Party; company, Original Loan Seller or (B) in the case of an intervening assignment where a public recording office retains the original recorded intervening assignment or in the case where an intervening assignment is lost after recordation in a public recording office, a copy of such intervening assignment certified by such public recording office to be a true and complete copy of the original recorded intervening assignmentescrow company;
(vii) to the extent applicable, an original policy or copy of primary mortgage guaranty insurance or certificate a power of insurance, if applicable;attorney; and
(viii) the original lender's title policy insurance or other evidence of title such as or, if unavailable, a copy of the preliminary title commitment, or a copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any. The Depositor shall deliver to the Custodian the applicable recorded document promptly upon receipt from the respective recording office but in no event later than 240 120 days from the Closing Date. From time to time, the Original Loan Seller (pursuant to the Master Seller's Warranties and IndyMac Purchase Agreement), the Depositor or the Servicer (pursuant to the IndyMac Servicing Agreement), the Responsible Party may as applicable, shall forward to the Custodian additional original documents, documents and additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan approved by the Responsible PartyLoan, in accordance with the terms of the Master Seller's Warranties and Servicing AgreementIndyMac Purchase Agreement upon receipt of such documents. All such mortgage documents held by the Custodian as to each Mortgage Loan shall constitute the "Custodial File." On or prior to the Closing Date, the Depositor shall deliver to the Custodian Assignments of Mortgages (except in the case of MERS Loans), in blank, for each applicable Mortgage Loan. To the extent not previously delivered to the Purchaser pursuant to the IndyMac Purchase Agreement, on or prior to the Closing Date, the Original Loan Seller shall deliver to the Custodian, Assignments of Mortgages, in blank, for each Mortgage Loan that is not a MERS Loan. Pursuant to the IndyMac Assignment Agreement, no later than thirty (30) Business Days following the later of the Closing Date and the date of receipt by the Servicer of the complete recording information for a Mortgage, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Original Loan Seller and at no expense to the Trust Fund, the Trustee, the Servicer, the Custodian, the Master Servicer, the Securities Administrator or the Depositor, in the appropriate public office for real property records, each Assignment of Mortgage referred to in Section 2.01(b)(ii). Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, pursuant to the IndyMac Assignment Agreement, the Assignments of Mortgage shall not be required to be completed and submitted for recording with respect to any Mortgage Loan (i) if the Trustee and each Rating Agency have received an Opinion of Counsel, satisfactory to the Trustee and each Rating Agency to the effect that the recordation of such Assignments of Mortgage in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Loan or (iii) if the Rating Agencies have each notified the Depositor and the Servicer in writing that not recording any such Assignments of Mortgage would not cause the initial ratings on any Certificates to be downgraded or withdrawn; provided, however, that the Servicer shall not be held responsible or liable for any loss that occurs because an Assignment of Mortgage was not recorded, but only to the extent the Servicer does not have prior knowledge of the act or omission that causes such loss. Unless the Depositor gives the Servicer notice to the contrary, the Depositor is deemed to have given the Servicer notice that the condition set forth in clause (iii) above is applicable. In addition to the foregoing and pursuant to the IndyMac Assignment Agreement, the Servicer shall cause each Assignment of Mortgage to be recorded in accordance with Accepted Servicing Practices in order to convey, upon foreclosure, the title of any Mortgaged Property to the Trust. If the Assignment of Mortgage is to be recorded, the applicable Mortgage shall be assigned by the Original Loan Seller, pursuant to the IndyMac Assignment Agreement, at the expense of the Original Loan Seller to "HSBC Bank USA, National Association, as trustee under the Pooling and Servicing Agreement dated as of January 1, 2008, BCAP LLC Trust 2008-IND1." In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, pursuant to the IndyMac Assignment Agreement, the Original Loan Seller shall promptly cause to be delivered a substitute Assignment of Mortgage to cure such defect and thereafter cause each such assignment to be duly recorded at no expense to the Trust Fund. In the event that such original or copy of any document submitted for recordation to the appropriate public recording office is not so delivered to the Custodian within the time period and in the manner specified in the IndyMac Purchase Agreement (which is 90 days following the Closing Date (other than with respect to the Assignments of Mortgage)), upon receipt of actual knowledge the Trustee shall take or cause to be taken such remedial actions under the IndyMac Purchase Agreement against the Original Loan Seller as may be permitted to be taken thereunder, including, without limitation, if applicable, the repurchase by the Original Loan Seller of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that the Original Loan Seller cannot deliver such original or copy of any document submitted for recordation to the appropriate public recording office within the specified period due to a delay caused by the recording office in the applicable jurisdiction; provided, that the Original Loan Seller shall instead deliver a recording receipt of such recording office or, if such recording receipt is not available, an officer's certificate of an officer of the Original Loan Seller, confirming that such document has been accepted for recording. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains or loses the original Mortgage or assignment after it has been recorded, the obligations of the Original Loan Seller shall be deemed to have been satisfied upon delivery by the Original Loan Seller to the Custodian, prior to the Closing Date of a copy of such Mortgage or assignment, as the case may be, certified (such certification to be an original thereof) by the public recording office to be a true and complete copy of the recorded original thereof.
(c) 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") to be known, for convenience, as "BCAP Trust LLC 2008-IND1" and HSBC Bank USA, National Association 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 and in the IndyMac Assignment Agreement, including without limitation, the representation and warranty set forth in paragraphs (32), (38) and (39) of Exhibit E of the IndyMac Assignment Agreement. The Trust's fiscal year is the calendar year.
(d) The Trust shall have the capacity, power and authority, and the Trustee on behalf of the Trust is hereby authorized, to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and interest of the Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans) pursuant to Section 2.01(a).
(e) Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge that the functions of the Trustee with respect to the custody, acceptance, inspection and release of Custodial Files, including but not limited to certain insurance policies and documents contemplated by this Agreement, and preparation and delivery of the certifications, shall be performed by the Custodian.
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Samples: Pooling and Servicing Agreement (BCAP LLC Trust 2008-Ind1)
