Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan. (b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to: (1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned: (i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company; (ii) Any assumption and modification agreement; (iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and (2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned: (i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company; (ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan; (iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank; (iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease; (vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease; (viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and (ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian). (3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents. (c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans: (1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan); (2) a copy of the title insurance policy (other than with respect to a Cooperative Loan); (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and (4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09. (d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 12 contracts
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc 2000-9-Trust), Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc 2000-1 Trust), Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc 2000-5 Trust)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) herein all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the CustodianCustodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the following documents or instruments fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as promptly as practicable, but Exhibit 4 in any event within 30 days, after receipt by the Company of all such documents and instruments for all favor of the outstanding Mortgage Loans:
Custodian (1on behalf of the Trustee) and the Mortgage Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording indicated thereon that are required to be included in the Mortgage Files (other than so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with respect to a Cooperative Loan);
(2) a copy the Custodian, the Trustee and the Special Servicer in connection with any additional powers of the title insurance policy (other than with respect to a Cooperative Loan);
(3) attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage that has been assigned Loan by or under authorization by any party hereto except to the Company, extent that the related recorded intervening assignment or assignments absence of Mortgage, showing a complete chain of assignment from document described in the originator to the Company (other than second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Cooperative Specially Serviced Mortgage Loan); and
. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (4or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to any Cooperative each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that has been assigned the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Company, Closing Date are to be held by the related filed intervening UCC-3 financing statements Trustee (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain or the Custodian on its behalf) in escrow on behalf of assignment from the named originator Seller at all times prior to the CompanyClosing Date. Pending such delivery, the Company The Mortgage Files shall retain in its files (a) copies be released from escrow upon closing of the documents described in clauses (1) and (3) sale of the preceding sentenceMortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (b) if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance binders company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with respect evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage Loans has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other than material modification, consolidation and extension agreements, if any, with respect evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a Cooperative true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies );
2.2.5 Originals of the Mortgage, all intervening assignments of Mortgage, if any, title insurance binder with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (i) in the Primary Insurance Policycase of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by Seller to be a true and complete copy of the original assignment submitted for recording, and (ii) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
2.2.7 The original or a copy of each guaranty, if any, described in constituting additional security for the two preceding sentences are collectively referred to herein as the "Document File" with respect to each repayment of such Mortgage Loan.;
2.2.8 The original (which may be electronic) The Company shall advise the Trustee in writing or a copy (which may be electronic) Title Insurance Policy or, if such delivery Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date or a preliminary title report binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date;
(A) Uniform Commercial Code (“UCC”) financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
2.2.10 Copies of the related ground lease(s), space lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related Serviced Companion Loan, Non-Serviced Companion Loan or B Note), if any, related to the Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the CustodianPooling and Servicing Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall not have occurred be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the first anniversary Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within 90 days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to the Mortgage Loan;
2.2.14 Third-party management agreements, if any, with respect to any Mortgaged Property;
2.2.15 Copies of any Environmental Insurance Policy;
2.2.16 Copies of any affidavit and indemnification agreement;
2.2.17 If the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to Seller in connection with the Seller’s origination or acquisition of the Mortgage Loan; (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the Seller’s origination or acquisition of the Mortgage Loan; and (c) if the related Mortgage Loan is a Franchise Mortgage Loan, a copy of the notice (to the extent such a notice is required under the terms of the related franchise, management or similar agreement) to the related franchisor stating that the Franchise Mortgage Loan has been transferred to the Trust and requesting a replacement comfort letter in favor of the Trust (or any such new document or acknowledgement as may be contemplated under the existing comfort letter); and
2.2.18 With respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date. The Company In addition, a copy of any ground lease, space lease or air rights lease shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee Master Servicer within thirty (or the Custodian30) as originals or copies) either (a) upon the written request days of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09Closing Date.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 8 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23)
Conveyance of Mortgage Loans. (a) The CompanyIt is the intention of the parties hereto that a common law trust be established pursuant to this Agreement. _____________________ is hereby appointed, and does hereby agree to act, as Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the exclusive use and benefit of all present and future Certificateholders. It is not intended that this Agreement create a partnership or a joint-stock association.
(b) Each of the Depositor and, at the direction of the Depositor given pursuant to the Mortgage Loan Purchase Agreement, the Mortgage Loan Seller, concurrently with the its execution and delivery of this Agreementhereof, does hereby assign, transfer, assign, set-over sell and otherwise convey to the Trustee without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor and to the Mortgage LoansLoan Seller, including all interest respectively, in, to and principal received by the Company on or with respect to under the Mortgage Loans identified on the Mortgage Loan Schedule and all other assets included or to be included in REMIC I. Such assignment includes (i) the Mortgage Loans as from time to time are subject to this Agreement and all payments under and proceeds of such Mortgage Loans received or receivable after the Cut-off Date (other than payments of principal principal, interest and interest other amounts due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date), together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired in respect of a Mortgage Loan; and (iii) such funds or assets as from time to time are deposited in the Distribution Account, the Certificate Account and the REO Account (if established). The Company acknowledges it has sold all right, title and interest in and to It is intended that the conveyance of the Mortgage Loans and the related rights and property by the Depositor and the Mortgage Loan Seller to the Trustee to the extent Trustee, as provided above in this Section be, and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership be construed as, an absolute transfer of the Mortgage Loans by the Depositor and the Mortgage Loan Seller to the Trustee and will for the benefit of the Certificateholders. It is, further, not deliver any instrument intended that such conveyance be deemed a pledge of satisfaction the Mortgage Loans by the Depositor or conveyance with respect the Mortgage Loan Seller to the Trustee to secure a debt or other obligation of the Depositor or the Mortgage Loan Seller, as the case may be. However, in the event that the Mortgage Loans are held to be property of the Depositor or a the Mortgage LoanLoan Seller, or convey if for any reason this Agreement is held or purport deemed to create a security interest in the Mortgage Loans, then it is intended that, (i) 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; (ii) the conveyance provided for in this Section shall be deemed to be a grant by the Depositor and the Mortgage Loan Seller to the Trustee, for the benefit of the Certificateholders, of a security interest in all of their respective right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Notes, the Mortgages, any interest related insurance policies and all other documents in a the related Mortgage LoanFiles, except (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account, the Distribution Account or the REO Account, whether in the form of cash, instruments, securities or other property; (iii) the possession by the Trustee or its agent of the Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a Person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the intent Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Section 9-305, 8-313 or 8-321 thereof); and (d) notifications to, and acknowledgments, receipts or confirmations from, Persons holding such property shall be deemed to be 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, the Mortgage Loan Seller and the Trustee 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, 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. With respect to any Pledged Asset Mortgage LoanAt the Depositor's direction, the Company does hereby transferTrustee shall execute and deliver, assignand the Master Servicer shall (at its expense) file, set-over 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 and otherwise convey to maintain the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its Trustee's security interest in or lien on the Trust Fund, including without limitation (A) continuation statements and to (B) such other statements as may be occasioned by any Additional Collateral, (iii) its right to receive payments in respect transfer of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) , the following documents Master Servicer, the Special Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded Depositor in the name of MERS or its designeeTrust Fund. In connection herewith, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take have all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on rights and remedies of a secured party and creditor under the records of MERS for purposes of Uniform Commercial Code as in force in the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documentsrelevant jurisdiction.
(c) In connection with the Mortgage Loan Seller's assignment pursuant to subsection (b) above, the Mortgage Loan Seller shall deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed thereby (with a copy to the Master Servicer), on or before the Closing Date, the Mortgage File for each Mortgage Loan transferred so assigned by the Mortgage Loan Seller hereunder. If the Mortgage Loan Seller is unable to deliver or cause the delivery of any original Mortgage Note, it may deliver a copy of such Mortgage Note, together with a lost note affidavit, and assigned shall thereby be deemed to have satisfied the Trusteedocument delivery requirements of this Section 2.01(c). If the Mortgage Loan Seller cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the Company shall deliver to the Trustee (original or the Custodian) the following documents or instruments as promptly as practicable, but in a copy of any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding documents and/or instruments referred to in clauses [(ii), (iv), (viii), (xi)(A) and (xii)] of the definition of "Mortgage Loans:
(1) the Mortgage File", with evidence of recording indicated thereon or filing (other than with respect to a Cooperative Loan);
(2as the case may be) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge solely because of a Trigger Event. The Trustee shall have no obligation to request delivery of delay caused by the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such public recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take office where such action will not cause such Rating Agency to reduce document or withdraw its then current ratings of the Certificates. The party obtaining actual notice instrument has been delivered for recordation or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticefiling, as the case may be, the Company delivery requirements of this Section 2.01(c) shall insert be deemed to have been satisfied as to such missing item, and such missing item shall be deemed to have been included in the related Mortgage File, provided that a copy of such document or instrument (without evidence of recording or filing information thereon, but certified (which certificate may relate to multiple documents and/or instruments) by the Mortgage Loan Seller to be a true and complete copy of the original thereof submitted for recording or filing, as the case may be) is delivered to the Trustee or a Custodian appointed thereby on or before the Closing Date, and either the original of such missing document or instrument, or a copy thereof, with evidence of recording or filing, as the case may be, thereon, is delivered to the Trustee or such Custodian within _____ days of the Closing Date (or within such longer period after the Closing Date as the Trustee may consent to, which consent shall not be unreasonably withheld so long as the Mortgage Loan Seller has provided the Trustee with evidence of such submission for recording or filing, as the case may be, or has certified to the Trustee as to the occurrence of such submission for recording or filing, as the case may be, and is, as certified to the Trustee no less often than monthly, in good faith attempting to obtain from the appropriate recording or filing office such original or copy). If the Mortgage Loan Seller cannot or does not so deliver, or cause to be delivered, as to any Mortgage Loan, the original of any of the documents and/or instruments referred to in clauses [(iii), (v), and (xi)(B)] of the definition of "Mortgage File", because such document or instrument has been delivered for recording or filing, as the case may be, the delivery requirements of this Section 2.01(c) shall be deemed to have been satisfied as to such missing item, and such missing item shall be deemed to have been included in the related Mortgage File, provided that a copy of such document or instrument (without evidence of recording or filing thereon, but certified (which certificate may relate to multiple documents and/or instruments) by the Mortgage Loan Seller to be a true and complete copy of the original thereof submitted for recording or filing, as the case may be) is delivered to the Trustee or a Custodian appointed thereby on or before the Closing Date, and either the original of such missing document or instrument, or a copy thereof, with evidence of recording or filing, as the case may be, thereon, is delivered to the Trustee or such Custodian within _____ days of the Closing Date (or within such longer period after the Closing Date as the Trustee may consent to, which consent shall not be unreasonably withheld so long as the Mortgage Loan Seller has provided the Trustee with evidence of such submission for recording or filing, as the case may be, or has certified to the Trustee as to the occurrence of such submission for recording or filing, as the case may be, and is, as certified to the Trustee no less often than monthly, in good faith attempting to obtain from the appropriate recording or filing office such original or copy). If the Mortgage Loan Seller cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the original or a copy of the related lender's title insurance policy referred to in clause (ix) of the definition of "Mortgage File" solely because such policy has not yet been issued, the delivery requirements of this Section 2.01(c) shall be deemed to be satisfied as to such missing item, and such missing item shall be deemed to have been included in the related Mortgage File, provided that the Mortgage Loan Seller shall have delivered to the Trustee or a Custodian appointed thereby, on or before the Closing Date, a commitment for title insurance "marked-up" at the closing of such Mortgage Loan, and the Mortgage Loan Seller shall deliver to the Trustee or such Custodian, promptly following the receipt thereof, the original related lender's title insurance policy (or a copy thereof). In addition, notwithstanding anything to the contrary contained herein, if there exists with respect to any Group of related Cross-Collateralized Mortgage Loans only one original of any document referred to in the definition of "Mortgage File" covering all the Mortgage Loans in such Group, then the inclusion of the original of such document in the Mortgage File for any of the Mortgage Loans in such Group shall be deemed an inclusion of such original in the Mortgage File for each such Mortgage Loan. None of the Trustee, any Custodian, the Depositor, the Master Servicer or the Special Servicer shall in any way be liable for any failure by the Mortgage Loan Seller to comply with the delivery requirements of this Section 2.01(c). If any of the endorsements referred to in clause (i) of the definition of "Mortgage File", any of the assignments of Mortgage referred to in clause (iii) of the Mortgages definition of "Mortgage File", any of the assignments of Assignment of Leases referred to in clause (v) of the definition of "Mortgage File", or UCC-3 any of the assignments of Security Agreement referred to in clause (vii) of the definition of "Mortgage File" are delivered to the Trustee in blank, the Trustee shall (without being obligated to record or file such) be responsible for completing the related endorsement or assignment in the name of the Trustee (in such capacity).
(d) The Mortgage Loan Seller shall, as to each Mortgage Loan, at its own expense, promptly (and shall in any event within _____ days of the Closing Date) submit or cause the same to be recorded submitted for recording or filedfiling, at as the Company's expensecase may be, in the appropriate public office for real property records or UCC financing statementsFinancing Statements, except as appropriate, each assignment referred to in clauses (iii) and (v) of the definition of "Mortgage File" and each UCC-1, UCC-2 and UCC-3, if any, referred to in clause (xi)(B) of the definition of "Mortgage File". Each such assignment shall reflect that it should be returned by the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory public recording office to the Trustee following recording, and satisfactory each such UCC-1, UCC-2 and UCC-3 shall reflect that the file copy thereof should be returned to the Trustee following filing. At such time as such assignments, UCC-1s, UCC-2s and UCC-3s have been returned to the Trustee, the Trustee shall promptly forward a copy of each thereof to the Master Servicer. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the Mortgage Loan Seller shall promptly prepare or cause the preparation of a substitute therefor or cure or cause the curing of such defect, as the case may be, and thereafter the Mortgage Loan Seller, shall, at its own expense, submit the substitute or corrected documents or cause such to be submitted for recording or filing, as appropriate.
(e) All documents and records in the Mortgage Loan Seller's possession (or under its control) relating to the Mortgage Loans that are not required to be a part of a Mortgage File in accordance with the definition thereof, together with all Escrow Payments and Reserve Funds in the possession of the Mortgage Loan Seller (or under its control) with respect to the Mortgage Loans, shall be delivered or caused to be delivered by the Mortgage Loan Seller to the Master Servicer, within _____ days of the Closing Date, and shall be retained by the Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders.
(f) The Mortgage Loan Seller shall, as to each Rating Agency Mortgage Loan which is secured by the interest of the related Mortgagor under a Ground Lease, at its own expense, promptly (as evidenced and in writing), recordation any event within ____ days of such assignment is not necessary to protect the Trustee against discharge Closing Date) notify the related ground lessor of the transfer of such Mortgage Loan by to the Company or any valid assertion Trust pursuant to this Agreement and inform such ground lessor that any Person other than notices of default under the Trustee has title related Ground Lease should thereafter be forwarded to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyTrustee.
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Nationslink Funding Corp)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) herein all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the CustodianCustodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the following documents or instruments fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as promptly as practicable, but Exhibit 4 in any event within 30 days, after receipt by the Company of all such documents and instruments for all favor of the outstanding Mortgage Loans:
Custodian (1on behalf of the Trustee) and the Mortgage Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording indicated thereon that are required to be included in the Mortgage Files (other than so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with respect to a Cooperative Loan);
(2) a copy the Custodian, the Trustee and the Special Servicer in connection with any additional powers of the title insurance policy (other than with respect to a Cooperative Loan);
(3) attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage that has been assigned Loan by or under authorization by any party hereto except to the Company, extent that the related recorded intervening assignment or assignments absence of Mortgage, showing a complete chain of assignment from document described in the originator to the Company (other than second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Cooperative Specially Serviced Mortgage Loan); and
. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (4or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to any Cooperative each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that has been assigned the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Company, Closing Date are to be held by the related filed intervening UCC-3 financing statements Trustee (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain or the Custodian on its behalf) in escrow on behalf of assignment from the named originator Seller at all times prior to the CompanyClosing Date. Pending such delivery, the Company The Mortgage Files shall retain in its files (a) copies be released from escrow upon closing of the documents described in clauses (1) and (3) sale of the preceding sentenceMortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C20, Commercial Mortgage Pass-Through Certificates, Series 2015-C20, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (b) if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance binders company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with respect evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage Loans has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other than material modification, consolidation and extension agreements, if any, with respect evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a Cooperative true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C20, Commercial Mortgage Pass-Through Certificates, Series 2015-C20” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related B Note or Serviced Companion Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies );
2.2.5 Originals of the Mortgage, all intervening assignments of Mortgage, if any, title insurance binder with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (i) in the Primary Insurance Policycase of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by Seller to be a true and complete copy of the original assignment submitted for recording, and (ii) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C20, Commercial Mortgage Pass-Through Certificates, Series 2015-C20” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
2.2.7 The original or a copy of each guaranty, if any, described in constituting additional security for the two preceding sentences are collectively referred to herein as the "Document File" with respect to each repayment of such Mortgage Loan.;
2.2.8 The original (which may be electronic) The Company shall advise the Trustee in writing or a copy (which may be electronic) Title Insurance Policy or, if such delivery Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date or a preliminary title report binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date;
(A) Uniform Commercial Code (“UCC”) financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
2.2.10 Copies of the related ground lease(s), space lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related Serviced Companion Loan, Non-Serviced Companion Loan or B Note), if any, related to the Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the CustodianPooling and Servicing Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall not have occurred be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the first anniversary Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within 90 days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to the Mortgage Loan;
2.2.14 Third-party management agreements, if any, with respect to any Mortgaged Property;
2.2.15 Copies of any Environmental Insurance Policy;
2.2.16 Copies of any affidavit and indemnification agreement;
2.2.17 If the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to Seller in connection with the Seller’s origination or acquisition of the Mortgage Loan; and (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the Seller’s origination or acquisition of the Mortgage Loan; and
2.2.18 With respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date. The Company In addition, a copy of any ground lease, space lease or air rights lease shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee Master Servicer within thirty (or the Custodian30) as originals or copies) either (a) upon the written request days of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09Closing Date.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 6 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C20), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C20), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C20)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) herein all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the CustodianCustodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the following documents or instruments fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as promptly as practicable, but Exhibit 4 in any event within 30 days, after receipt by the Company of all such documents and instruments for all favor of the outstanding Mortgage Loans:
Custodian (1on behalf of the Trustee) and the Mortgage Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording indicated thereon that are required to be included in the Mortgage Files (other than so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with respect to a Cooperative Loan);
(2) a copy the Custodian, the Trustee and the Special Servicer in connection with any additional powers of the title insurance policy (other than with respect to a Cooperative Loan);
(3) attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage that has been assigned Loan by or under authorization by any party hereto except to the Company, extent that the related recorded intervening assignment or assignments absence of Mortgage, showing a complete chain of assignment from document described in the originator to the Company (other than second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Cooperative Specially Serviced Mortgage Loan); and
. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (4or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to any Cooperative each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that has been assigned the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Company, Closing Date are to be held by the related filed intervening UCC-3 financing statements Trustee (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain or the Custodian on its behalf) in escrow on behalf of assignment from the named originator Seller at all times prior to the CompanyClosing Date. Pending such delivery, the Company The Mortgage Files shall retain in its files (a) copies be released from escrow upon closing of the documents described in clauses (1) and (3) sale of the preceding sentenceMortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed “Pay to the order of Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2013-C10, Commercial Mortgage Pass-Through Certificates, Series 2013-C10, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (b) if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance binders company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with respect evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage Loans has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other than material modification, consolidation and extension agreements, if any, with respect evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a Cooperative true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2013-C10, Commercial Mortgage Pass-Through Certificates, Series 2013-C10” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related B Note or Serviced Companion Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies );
2.2.5 Originals of the Mortgage, all intervening assignments of Mortgage, if any, title insurance binder with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (i) in the Primary Insurance Policycase of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by Seller to be a true and complete copy of the original assignment submitted for recording, and (ii) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2013-C10, Commercial Mortgage Pass-Through Certificates, Series 2013-C10” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
2.2.7 The original or a copy of each guaranty, if any, described in constituting additional security for the two preceding sentences are collectively referred to herein as the "Document File" with respect to each repayment of such Mortgage Loan.;
2.2.8 The original (which may be electronic) The Company shall advise the Trustee in writing or a copy (which may be electronic) Title Insurance Policy or, if such delivery Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date or a preliminary title report binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date;
(A) Uniform Commercial Code (“UCC”) financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
2.2.10 Copies of the related ground lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under such ground lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related Serviced Companion Loan, Non-Serviced Companion Loan and B Note), if any, related to the Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the CustodianPooling and Servicing Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall not have occurred be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the first anniversary Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within 90 days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to the Mortgage Loan;
2.2.14 Third-party management agreements, if any, with respect to any Mortgaged Property;
2.2.15 Copies of any Environmental Insurance Policy;
2.2.16 Copies of any affidavit and indemnification agreement; and
2.2.17 With respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date. The Company In addition, a copy of any ground lease shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee Master Servicer within thirty (or the Custodian30) as originals or copies) either (a) upon the written request days of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09Closing Date.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 6 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C10), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C10), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C10)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) herein all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the CustodianCustodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the following documents or instruments fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as promptly as practicable, but Exhibit 4 in any event within 30 days, after receipt by the Company of all such documents and instruments for all favor of the outstanding Mortgage Loans:
Custodian (1on behalf of the Trustee) and the Mortgage Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording indicated thereon that are required to be included in the Mortgage Files (other than so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with respect to a Cooperative Loan);
(2) a copy the Custodian, the Trustee and the Special Servicer in connection with any additional powers of the title insurance policy (other than with respect to a Cooperative Loan);
(3) attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage that has been assigned Loan by or under authorization by any party hereto except to the Company, extent that the related recorded intervening assignment or assignments absence of Mortgage, showing a complete chain of assignment from document described in the originator to the Company (other than second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Cooperative Specially Serviced Mortgage Loan); and
. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (4or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to any Cooperative each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that has been assigned the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Company, Closing Date are to be held by the related filed intervening UCC-3 financing statements Trustee (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain or the Custodian on its behalf) in escrow on behalf of assignment from the named originator Seller at all times prior to the CompanyClosing Date. Pending such delivery, the Company The Mortgage Files shall retain in its files (a) copies be released from escrow upon closing of the documents described in clauses (1) and (3) sale of the preceding sentenceMortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C22, Commercial Mortgage Pass-Through Certificates, Series 2015-C22, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (b) if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance binders company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with respect evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage Loans has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other than material modification, consolidation and extension agreements, if any, with respect evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a Cooperative true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C22, Commercial Mortgage Pass-Through Certificates, Series 2015-C22” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related B Note or Serviced Companion Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies );
2.2.5 Originals of the Mortgage, all intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policywith evidence of recording thereon or, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each such original assignments of Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously been delivered to the Trustee (appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In in the case of an original blanket intervening assignment of Mortgage Loans which have retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been prepaid in full after the Cut-off Date and returned on or prior to the date of execution 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and delivery of this Agreementcorrect copy thereof, together with (i) in the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification case of a Servicing Officer delay caused by the public recording office, an Officer’s Certificate of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, Seller stating that such recording or filing shall not be required if the Company delivers original intervening assignment of Mortgage has been sent to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office recording official for real property records recordation or UCC financing statements, except that (ii) in the Company need not cause to be so completed and recorded any case of an original intervening assignment of mortgage which relates to Mortgage that has been lost after recordation, a Mortgage Loan secured certification by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of appropriate county recording office where such assignment is not necessary to protect recorded that such copy is a true and complete copy of the Trustee against discharge original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Mortgage Loan Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by the Company or any valid assertion that any Person other than the Trustee has title Seller to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.be
Appears in 4 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C22), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C22), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C22)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) herein all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the CustodianCustodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the following documents or instruments fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as promptly as practicable, but Exhibit 4 in any event within 30 days, after receipt by the Company of all such documents and instruments for all favor of the outstanding Mortgage Loans:
Custodian (1on behalf of the Trustee) and the Mortgage Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording indicated thereon that are required to be included in the Mortgage Files (other than so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with respect to a Cooperative Loan);
(2) a copy the Custodian, the Trustee and the Special Servicer in connection with any additional powers of the title insurance policy (other than with respect to a Cooperative Loan);
(3) attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage that has been assigned Loan by or under authorization by any party hereto except to the Company, extent that the related recorded intervening assignment or assignments absence of Mortgage, showing a complete chain of assignment from document described in the originator to the Company (other than second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Cooperative Specially Serviced Mortgage Loan); and
. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (4or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to any Cooperative each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that has been assigned the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Company, Closing Date are to be held by the related filed intervening UCC-3 financing statements Trustee (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain or the Custodian on its behalf) in escrow on behalf of assignment from the named originator Seller at all times prior to the CompanyClosing Date. Pending such delivery, the Company The Mortgage Files shall retain in its files (a) copies be released from escrow upon closing of the documents described in clauses (1) and (3) sale of the preceding sentenceMortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, as Trustee for Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2015-C24, Commercial Mortgage Pass-Through Certificates, Series 2015-C24, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (b) if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance binders company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with respect evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage Loans has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other than material modification, consolidation and extension agreements, if any, with respect evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a Cooperative true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “Wilmington Trust, National Association, as Trustee for Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2015-C24, Commercial Mortgage Pass-Through Certificates, Series 2015-C24” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies );
2.2.5 Originals of the Mortgage, all intervening assignments of Mortgage, if any, title insurance binder with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (i) in the Primary Insurance Policycase of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by Seller to be a true and complete copy of the original assignment submitted for recording, and (ii) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “Wilmington Trust, National Association, as Trustee for Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2015-C24, Commercial Mortgage Pass-Through Certificates, Series 2015-C24” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
2.2.7 The original or a copy of each guaranty, if any, described in constituting additional security for the two preceding sentences are collectively referred to herein as the "Document File" with respect to each repayment of such Mortgage Loan.;
2.2.8 The original (which may be electronic) The Company shall advise the Trustee in writing or a copy (which may be electronic) Title Insurance Policy or, if such delivery Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date or a preliminary title report binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date;
(A) Uniform Commercial Code (“UCC”) financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
2.2.10 Copies of the related ground lease(s), space lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related Serviced Companion Loan, Non-Serviced Companion Loan or B Note), if any, related to the Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the CustodianPooling and Servicing Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall not have occurred be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the first anniversary Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within 90 days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to the Mortgage Loan;
2.2.14 Third-party management agreements, if any, with respect to any Mortgaged Property;
2.2.15 Copies of any Environmental Insurance Policy;
2.2.16 Copies of any affidavit and indemnification agreement;
2.2.17 If the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to Seller in connection with the Seller’s origination or acquisition of the Mortgage Loan; (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the Seller’s origination or acquisition of the Mortgage Loan; and (c) if the related Mortgage Loan is a Franchise Mortgage Loan, a copy of the notice (to the extent such a notice is required under the terms of the related franchise, management or similar agreement) to the related franchisor stating that the Franchise Mortgage Loan has been transferred to the Trust and requesting a replacement comfort letter in favor of the Trust (or any such new document or acknowledgement as may be contemplated under the existing comfort letter); and
2.2.18 With respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date. The Company In addition, a copy of any ground lease, space lease or air rights lease shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee Master Servicer within thirty (or the Custodian30) as originals or copies) either (a) upon the written request days of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09Closing Date.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 4 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C24), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C24), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C24)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfersells, assigntransfers, set-assigns, sets over and otherwise convey conveys to the Trustee for the benefit of the Certificateholders and the Group I Certificate Insurer, without recourse (except as provided herein) recourse, all the right, title and interest of the Company Depositor in and to the Trust Fund together with all rights assigned by the Transferor to the Depositor, pursuant to the Mortgage Loan Purchase Agreement, solely with respect to the Mortgage Loans, including all interest and principal received by the Company on or and, solely with respect to the Mortgage Loans (other than payments Loans, all of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all Transferor’s right, title and interest in and to the Servicing Agreements solely as each such Servicing Agreement relates to the Mortgage Loans being serviced by the related Servicer (other than those rights under the Servicing Agreements that do not relate to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership servicing of the Mortgage Loans (including, without limitation, the representations and warranties made by each Servicer (in its capacity as loan seller to the Transferor) and the document delivery requirements of such Servicer and the remedies (including indemnification) available for breaches thereto), which rights were retained by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan Transferor pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage LoanAssignment Agreements. In addition, connection with respect to any CashSaver Mortgage Loanthe foregoing assignments, the Company does hereby transfer, assign, set-over and otherwise convey Transferor has caused each Servicer to enter into the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanrelated Assignment Agreement.
(bi) In connection with such the transfer and assignmentassignment set forth in clause (a) above, the Company does hereby deliver Depositor has delivered or caused to the Trustee (or be delivered to the Custodian, on behalf of the Trustee) , for the benefit of the Certificateholders and the Group I Certificate Insurer the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any that is not a Cooperative Mortgage Loan or Designated Loan) so transferred and assigned:
(iA) The the original Mortgage Note, Note endorsed without recourse by manual or facsimile signature in blank by in the Company, including following form: “Pay to the order of ___________ without recourse,” with all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Person endorsing the Mortgage Note is a Confirmatory (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); or, with respect to any Lost Mortgage Note, such Confirmatory a lost note affidavit from the related originator or the Transferor stating that the original Mortgage Note may be payable directly to the Company was lost or may show destroyed, together with a complete chain copy of endorsement from the named payee to the Companysuch Mortgage Note;
(iiB) Any assumption except as provided below, the original recorded Mortgage or a copy of such Mortgage certified by the related originator as being a true and modification agreementcomplete copy of the Mortgage;
(iiiC) Except for any a duly executed assignment of the Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments), endorsed in blank (except with respect to MERS designated Mortgage Loans) together with, except as provided below, all interim recorded assignments of such mortgage (each such assignment, when duly and validly completed, to be in recordable form and sufficient to effect the assignment of and transfer to the assignee thereof, under the Mortgage to which the assignment relates); provided that, if the related Mortgage has not been returned from the applicable public recording office, such assignment of the Mortgage may exclude the information to be provided by the Trusteerecording office;
(D) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(2E) Each except as provided below, the original or duplicate original lender’s title policy and all riders thereto.
(ii) In connection with the transfer and assignment set forth in clause (a) above, 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 Group I Certificate Insurer the following documents or instruments with respect to each Cooperative Mortgage Loan (other than a Designated Loan) so transferred and assigned:
(iA) The original Mortgage Notethe Cooperative Shares, endorsed without recourse together with the Stock Power in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Companyblank;
(iiB) A counterpart of the executed Security Agreement;
(C) the executed Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Mortgage Loan;
(iiiD) The related Cooperative Stock Certificatethe executed Recognition Agreement, together with an undated stock power (or other similar instrument) executed in blankif any;
(ivE) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies copies of the original UCC-1 financing statementFinancing Statement, and any continuation statements, filed by the originator of such Cooperative Mortgage Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator in under the Cooperative Stock Security Agreement and the Assignment of Proprietary Lease;
(viiF) If applicable, copies of the UCC-3 filed UCC assignments or amendments of the security interest described referenced in clause (viv) above, sent above showing an unbroken chain of title from the originator to the appropriate public office for filingTrust, each with evidence of recording thereof, evidencing the interest of the assignee under the Security Agreement and the Assignment of Proprietary Lease;
(G) an executed assignment of the interest of the originator in the Security Agreement, the Assignment of Proprietary Lease and the Recognition Agreement, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the TrusteeTrust; and
(ixH) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) abovefor any Cooperative Mortgage Loan that has been modified or amended, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 instrument or instruments effecting such modification or amendment. Notwithstanding the foregoing, if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designeeMortgage Electronic Registration System, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee Inc. (or the Custodian“MERS”) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall will be required to be prepared or delivered; delivered and instead, the Company Master Servicer shall take all actions as are necessary enforce the obligations of the applicable Servicer under its related Servicing Agreement to cause the Trust Fund Trustee to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes the purpose of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. If in connection with any Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim recorded assignments or (c) the lender’s title policy (together with all riders thereto) satisfying the requirements of clause (b)(i)(B), (C) or (E) above, respectively, concurrently with the execution and shall provide evidence thereof delivery hereof because such document or documents have not been returned from the applicable public recording office in the case of clause (b)(i)(B) or (C) above, or because the title policy has not been delivered to either the Trustee (Custodian or the Custodian).
Depositor by the applicable title insurer in the case of clause (3b)(i)(E) With respect to each Designated Loanabove, the Company does hereby Depositor shall promptly deliver to the Trustee Custodian, in the case of clause (b)(i)(B) or (C) above, such original Mortgage or such interim assignment, as the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trusteecase may be, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon upon receipt thereof from the public recording office, or a copy thereof, certified, if appropriate, by the relevant recording office, but in no event shall any such delivery of the original Mortgage and each such interim assignment or a copy thereof, certified, if appropriate, by the relevant recording office, be made later than one year following the Closing Date, or, in the case of clause (b)(i)(E) above, no later than 120 days following the Closing Date; provided, however, in the event the Depositor is unable to deliver by such date each Mortgage and each such interim assignment by reason of the fact that any such documents have not been returned by the appropriate recording office, or, in the case of each such interim assignment, because the related Mortgage has not been returned by the appropriate recording office, the Depositor shall deliver such documents to the Custodian as promptly as possible upon receipt thereof and, in any event, within 720 days following the Closing Date. The Depositor shall forward or cause to be forwarded to the Custodian (a) from time to time additional original documents evidencing an assumption or modification of a Mortgage Loan and (b) any other than documents required to be delivered by the Depositor to the Custodian. In the event that the original Mortgage is not delivered and in connection with respect to the payment in full of the related Mortgage Loan and the public recording office requires the presentation of a Cooperative Loan);
(2) “lost instruments affidavit and indemnity” or any equivalent document, because only a copy of the title insurance policy Mortgage can be delivered with the instrument of satisfaction or reconveyance, the Custodian shall execute and deliver or cause to be executed and delivered such a document to the public recording office. In the case where a public recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, the Transferor shall deliver to the Custodian a copy of such Mortgage certified by such public recording office to be a true and complete copy of the original recorded Mortgage. If an assignment of Mortgage is to be recorded, the Depositor shall cause the Mortgage to be assigned to “U.S. Bank National Association, in trust for the MASTR Adjustable Rate Mortgages Trust 2007-1 for the benefit of the Holders of the Mortgage Pass-Through Certificates, Series 2007-1” and, subject to Section 2.02, the Master Servicer shall enforce the obligations of the related Servicer pursuant to the related Servicing Agreement to (other than i) cause such assignment to be in proper form for recording in the appropriate public office for real property records and (ii) 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 assignments of Mortgage as to which the related Servicer has not received the information required to prepare such assignment in recordable form, the related 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 ninety (90) days after receipt thereof and except that the related Servicer need not cause to be recorded any assignment which relates to a Cooperative Loan);
Mortgage Loan (3a) in any state where, in an Opinion of Counsel addressed to the Trustee, 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 Transferor, (b) in any state where recordation is not required by either Rating Agency to obtain the initial ratings on the Certificates set forth in the Prospectus Supplement or (c) with respect to any Mortgage that which has been assigned recorded in the name of MERS, or its designee. As of the date hereof, recordation is not required in any state by either Rating Agency to obtain the Companyinitial rating on the Certificates (upon which statement the Master Servicer, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder Trustee and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger EventCustodian may conclusively rely). In the case of Mortgage Loans which that have been prepaid in full after as of the Cut-off Date and prior to the date of execution and delivery of this AgreementClosing Date, the CompanyDepositor, in lieu of delivering the above documents to the Custodian on behalf of the Trustee, herewith delivers will deposit in the Collection Account the portion of such payment that is required to be deposited in the Collection Account pursuant to Section 3.07 hereof.
(c) The Depositor does hereby establish, pursuant to the Trustee a certification further provisions of a Servicing Officer this Agreement and the laws of the nature set forth State of New York, an express trust (the “Trust”) to be known, for convenience, as “MASTR Adjustable Rate Mortgages Trust 2007-1” and U.S. Bank National Association is hereby appointed as Trustee in Section 3.09accordance with the provisions of this Agreement.
(d) The Company shall not be required to record Depositor and the assignments Trustee on behalf of the Mortgages referred Trust agree and understand that it is not intended that any 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 Loan Practices Act effective November 7, 2004, (iv) a “high risk home loan” under the Illinois High Risk Home Loan Act, effective as of January 1, 2004, or (v) a “high cost home loan” under the Indiana High Cost Home Loan Law, effective January 1, 2005. The Trustee shall be entitled to indemnification from the Depositor and the Trust Fund for any loss, liability or expense arising out of, or in Section 2.01(b)(1)(iii) or file connection with, the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge provisions of the occurrence preceding sentence, including, without limitation, all costs, liabilities and expenses (including reasonable legal fees and expenses) of investigating and defending itself against any Trigger Event; providedclaim, howeveraction or proceeding, that pending or threatened, relating to such recording or filing provisions.
(e) Each of the Collection Account and Distribution Account shall not at all times be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect an Eligible Account, provided that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall Collection Account may be deemed to have knowledge be a sub-account of the Distribution Account. If at any such downgrading referred time either the Collection Account or the Distribution Account ceases to be an Eligible Account, the Master Servicer or the Trust Administrator, as applicable, shall immediately establish and maintain a new Collection Account or Distribution Account, as applicable, that is an Eligible Account, and shall immediately transfer all funds on deposit in the definition former Collection Account or Distribution Account, as applicable, to the new Collection Account or Distribution Account, as applicable.
(f) The Depositor hereby directs the Trust Administrator, solely in its capacity as Supplemental Interest Trust Trustee, to execute, deliver and perform its obligations under each of Trigger Event if, in the exercise of reasonable diligenceGroup I Cap 1 Agreement, the Company has or should have had knowledge thereofGroup I Cap 2 Agreement and the Group I Swap Agreement. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may beThe Transferor, the Company shall insert Depositor, the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to Master Servicer, the Trustee and shall cause the same to be recorded or filed, at Holders of the Company's expense, in the appropriate public office for real property records or UCC financing statements, except Group I Offered Certificates by their acceptance of such Certificates acknowledge and agree that the Company need Supplemental Interest Trust Trustee shall execute, deliver and perform its obligations under each of the Group I Cap 1 Agreement, the Group I Cap 2 Agreement and the Group I Swap Agreement and shall do so solely in its capacity as Supplemental Interest Trust Trustee, and not cause to be so completed and recorded any assignment in its individual capacity. Every provision of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory this Agreement relating to the Trustee and satisfactory conduct or affecting the liability of or affording protection to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary the Trust Administrator shall apply to protect the Trustee against discharge of such Mortgage Loan execution by the Company or any valid assertion that any Person other than Supplemental Interest Trust Trustee of the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided aboveGroup I Cap 1 Agreement, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at Group I Cap 2 Agreement and the expense Group I Swap Agreement, and the performance of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments its duties and satisfaction of Mortgages or UCC-3 financing statement at the expense of the Companyits obligations thereunder.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (MASTR Adjustable Rate Mortgages Trust 2007-1), Pooling and Servicing Agreement (MASTR Adjustable Rate Mortgages Trust 2007-1), Pooling and Servicing Agreement (MASTR Adjustable Rate Mortgages Trust 2007-1)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan (other than the right to receive any Retained Interest or any Prepayment Penalty Amounts) identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and to the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) the Depositor’s security interest in the Additional Collateral; (vi) all proceeds of any of the foregoing; and (vii) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor or the Master Servicer after the Cut-Off Date with respect to the Mortgage Loans. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreements to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under the Servicing Agreements as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of the Mortgage Loan Documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (of any obligation of the Depositor, the Seller or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as provided specifically set forth herein) all the right. In addition, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Additional Collateral Mortgage Loan, the Company Depositor does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Additional Collateral Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect pursuant to the related Cooperative Loan;
(v) The Security Servicing Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Thornburg Mortgage Securities Trust 2007-5), Pooling and Servicing Agreement (Thornburg Mortgage Securities Trust 2007-4), Pooling and Servicing Agreement (Thornburg Mortgage Securities Trust 2008-1)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) herein all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the CustodianCustodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the following documents or instruments fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as promptly as practicable, but Exhibit 4 in any event within 30 days, after receipt by the Company of all such documents and instruments for all favor of the outstanding Mortgage Loans:
Custodian (1on behalf of the Trustee) and the Mortgage Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording indicated thereon that are required to be included in the Mortgage Files (other than so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with respect to a Cooperative Loan);
(2) a copy the Custodian, the Trustee and the Special Servicer in connection with any additional powers of the title insurance policy (other than with respect to a Cooperative Loan);
(3) attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage that has been assigned Loan by or under authorization by any party hereto except to the Company, extent that the related recorded intervening assignment or assignments absence of Mortgage, showing a complete chain of assignment from document described in the originator to the Company (other than second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Cooperative Specially Serviced Mortgage Loan); and
. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (4or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to any Cooperative each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that has been assigned the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Company, Closing Date are to be held by the related filed intervening UCC-3 financing statements Trustee (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain or the Custodian on its behalf) in escrow on behalf of assignment from the named originator Seller at all times prior to the CompanyClosing Date. Pending such delivery, the Company The Mortgage Files shall retain in its files (a) copies be released from escrow upon closing of the documents described in clauses (1) and (3) sale of the preceding sentenceMortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C24, Commercial Mortgage Pass-Through Certificates, Series 2015-C24, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (b) if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance binders company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with respect evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage Loans has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other than material modification, consolidation and extension agreements, if any, with respect evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a Cooperative true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C24, Commercial Mortgage Pass-Through Certificates, Series 2015-C24” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies );
2.2.5 Originals of the Mortgage, all intervening assignments of Mortgage, if any, title insurance binder with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (i) in the Primary Insurance Policycase of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by Seller to be a true and complete copy of the original assignment submitted for recording, and (ii) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2015-C24, Commercial Mortgage Pass-Through Certificates, Series 2015-C24” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
2.2.7 The original or a copy of each guaranty, if any, described in constituting additional security for the two preceding sentences are collectively referred to herein as the "Document File" with respect to each repayment of such Mortgage Loan.;
2.2.8 The original (which may be electronic) The Company shall advise the Trustee in writing or a copy (which may be electronic) Title Insurance Policy or, if such delivery Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date or a preliminary title report binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date;
(A) Uniform Commercial Code (“UCC”) financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
2.2.10 Copies of the related ground lease(s), space lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related Serviced Companion Loan, Non-Serviced Companion Loan or B Note), if any, related to the Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the CustodianPooling and Servicing Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall not have occurred be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the first anniversary Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within 90 days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to the Mortgage Loan;
2.2.14 Third-party management agreements, if any, with respect to any Mortgaged Property;
2.2.15 Copies of any Environmental Insurance Policy;
2.2.16 Copies of any affidavit and indemnification agreement;
2.2.17 If the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to Seller in connection with the Seller’s origination or acquisition of the Mortgage Loan; (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the Seller’s origination or acquisition of the Mortgage Loan; and (c) if the related Mortgage Loan is a Franchise Mortgage Loan, a copy of the notice (to the extent such a notice is required under the terms of the related franchise, management or similar agreement) to the related franchisor stating that the Franchise Mortgage Loan has been transferred to the Trust and requesting a replacement comfort letter in favor of the Trust (or any such new document or acknowledgement as may be contemplated under the existing comfort letter); and
2.2.18 With respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date. The Company In addition, a copy of any ground lease, space lease or air rights lease shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee Master Servicer within thirty (or the Custodian30) as originals or copies) either (a) upon the written request days of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09Closing Date.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 4 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C24), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C24), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C24)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) herein all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the CustodianCustodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the following documents or instruments fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as promptly as practicable, but Exhibit 4 in any event within 30 days, after receipt by the Company of all such documents and instruments for all favor of the outstanding Mortgage Loans:
Custodian (1on behalf of the Trustee) and the Mortgage Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording indicated thereon that are required to be included in the Mortgage Files (other than so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with respect to a Cooperative Loan);
(2) a copy the Custodian, the Trustee and the Special Servicer in connection with any additional powers of the title insurance policy (other than with respect to a Cooperative Loan);
(3) attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage that has been assigned Loan by or under authorization by any party hereto except to the Company, extent that the related recorded intervening assignment or assignments absence of Mortgage, showing a complete chain of assignment from document described in the originator to the Company (other than second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Cooperative Specially Serviced Mortgage Loan); and
. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (4or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to any Cooperative each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that has been assigned the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Company, Closing Date are to be held by the related filed intervening UCC-3 financing statements Trustee (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain or the Custodian on its behalf) in escrow on behalf of assignment from the named originator Seller at all times prior to the CompanyClosing Date. Pending such delivery, the Company The Mortgage Files shall retain in its files (a) copies be released from escrow upon closing of the documents described in clauses (1) and (3) sale of the preceding sentenceMortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2014-C19, Commercial Mortgage Pass-Through Certificates, Series 2014-C19, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (b) if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance binders company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with respect evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage Loans has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other than material modification, consolidation and extension agreements, if any, with respect evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a Cooperative true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2014-C19, Commercial Mortgage Pass-Through Certificates, Series 2014-C19” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related B Note or Serviced Companion Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies );
2.2.5 Originals of the Mortgage, all intervening assignments of Mortgage, if any, title insurance binder with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (i) in the Primary Insurance Policycase of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by Seller to be a true and complete copy of the original assignment submitted for recording, and (ii) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “Wilmington Trust, National Association, as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2014-C19, Commercial Mortgage Pass-Through Certificates, Series 2014-C19” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
2.2.7 The original or a copy of each guaranty, if any, described in constituting additional security for the two preceding sentences are collectively referred to herein as the "Document File" with respect to each repayment of such Mortgage Loan.;
2.2.8 The original (which may be electronic) The Company shall advise the Trustee in writing or a copy (which may be electronic) Title Insurance Policy or, if such delivery Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date or a preliminary title report binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date;
(A) Uniform Commercial Code (“UCC”) financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
2.2.10 Copies of the related ground lease(s), space lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related Serviced Companion Loan, Non-Serviced Companion Loan or B Note), if any, related to the Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the CustodianPooling and Servicing Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall not have occurred be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the first anniversary Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within 90 days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to the Mortgage Loan;
2.2.14 Third-party management agreements, if any, with respect to any Mortgaged Property;
2.2.15 Copies of any Environmental Insurance Policy;
2.2.16 Copies of any affidavit and indemnification agreement;
2.2.17 If the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to Seller in connection with the Seller’s origination or acquisition of the Mortgage Loan; and (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the Seller’s origination or acquisition of the Mortgage Loan; and
2.2.18 With respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date. The Company In addition, a copy of any ground lease, space lease or air rights lease shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee Master Servicer within thirty (or the Custodian30) as originals or copies) either (a) upon the written request days of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09Closing Date.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 4 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C19), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C19), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C19)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class P Grantor Trust for the benefit of the Class P Certificates. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after the Cut-Off Date. The transfer of principal and interest due and payable on the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on or before, the Certificates from and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title transfer and interest in and to the assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the extent provided above terms and that retention conditions of record title of Mortgages (subject to Section 2.01(d) the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement) is for convenience only and , hereby agrees that such Mortgage Loans remain subject to the Company holds record title solely as custodian for the Trustee for benefit terms of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the related Non-Serviced Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance Loan Intercreditor Agreement and, with respect to a each Serviced Pari Passu Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Loan and the intent of this Agreement. With respect to any Pledged Asset Serviced Companion Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage related Loan pursuant to the Pledged Asset Mortgage Servicing Pair Intercreditor Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee (or the Custodian, on behalf remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee) , the following documents Fiscal Agent, the Paying Agent, any Custodian, the Master Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may Special Servicer shall be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) Depositor to comply with the document delivery requirements of the Mortgage to the Trustee; andLoan Purchase Agreements and this Section 2.1(b).
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(ic) The original Mortgage Noteapplicable Seller shall, endorsed without recourse in blank by at the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, and any continuation statements, filed by the originator expense of such Cooperative Loan Seller as secured partyto each of its respective Mortgage Loans, each with evidence of recording promptly (and in any event within 45 days following the receipt thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent cause to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except submitted for recording information. With or filing (except with respect to any Mortgage that has been recorded in the name of MERS or its designees), as the case may be, in the appropriate public office for real property records or UCC financing statements, as appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of "Mortgage File;" provided, if the related Mortgage and UCC financing statements have been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall such assignments will be required to be prepared submitted for recording or delivered; filing and instead, the Company shall applicable Seller has agreed in the applicable Mortgage Loan Purchase Agreement to take all actions as are necessary to cause the Trust Fund Trustee to be shown as as, and the Trustee shall take all actions necessary to confirm that it is shown as, the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. Each such assignment shall reflect that it should be returned by the public recording office to the Trustee following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, and assignment of Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall provide evidence obtain therefrom a certified copy of the recorded original. The applicable Seller shall forward copies thereof to the Trustee (or and the Custodian).
(3) With respect to each Designated LoanSpecial Servicer and, if recorded in the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trusteename of MERS, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder Master Servicer and the Primary Insurance PolicySpecial Servicer, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary within 45 days of the Closing Date. The Company shall promptly furnish to , evidence confirming that the Trustee (or is shown as the Custodian) owner on the documents included in the Document Files (other than record of MERS. If any such documents previously delivered to the Trustee (document or the Custodian) as originals instrument is lost or copies) either (a) upon the written request of the Trustee returned unrecorded or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeunfiled, as the case may be, because of a defect therein, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments applicable Seller shall, pursuant to the Trustee applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall upon receipt thereof cause the same to be duly recorded or filed, at as appropriate. After the Company's expenseapplicable Seller has caused the Trustee to be identified on the records of MERS as the owner of a Mortgage, it shall be the sole responsibility of the Master Servicer to ensure that subsequent relevant events relating to the Mortgage (as, for example, assumptions and partial releases) are promptly and properly registered with MERS throughout the term of the related Mortgage Loan for so long as the Mortgage Loan is an asset of the Trust. The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the Primary Servicing Agreement in favor of the Trustee and the Special Servicer to empower the Trustee and, in the appropriate public office for real property records event of the failure or UCC financing statements, except that incapacity of the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided aboveTrustee, the Trustee shall record or cause Special Servicer, to be recorded or filed such assignment or UCC-3 financing statement submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as described in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). In The Sellers agree to reasonably cooperate with the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such recording parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or filingunder authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the related Seller's expense, after the periods set forth above; provided, however, the Company Trustee shall furnish not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents as may be reasonably necessary and records in the possession of the Depositor or the Sellers that relate to accomplish such recording the Mortgage Loans, Serviced Companion Mortgage Loans or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause B Notes and that are not required to be recorded a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer or filedthe Primary Servicer on its behalf, on or before the date that is 45 days following the Closing Date and shall be held by the Master Servicer or the Primary Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer or the Primary Servicer by the related Seller, the assignments of Mortgages or UCC-3 financing statement at Servicer Mortgage File, will include, to the expense extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the Companyfollowing items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, the insurance policies or certificates (as applicable), the property inspection reports, any financial statements on the property, any escrow analysis, the tax bills, the Appraisal, the environmental report, the engineering report, the asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies. Delivery of any of the foregoing documents to the Primary Servicer (or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the Depositor's obligations under this Section 2.1(d). None of the Master Servicer, the Special Servicer or the Primary Servicer shall have any liability for the absence of any of the foregoing items from the Servicing Mortgage File if such item was not delivered by the related Seller.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 TOP 17), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Top16), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 TOP 17)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Mortgage LoansTrustee pursuant to Section 14 thereof, including (iii) the Initial Deposit, (iv) the Depositor's rights, if any, under the Intercreditor Agreements and the Other Pooling and Servicing Agreements with respect to the Pari Passu Loans and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after the Cut-Off Date. The transfer of principal and interest due and payable on the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on or before, the Certificates from and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title transfer and interest in and to assignment of the Mortgage Non-Trust-Serviced Pari Passu Loans to the Trustee and the right to the extent provided above and that retention of record title of Mortgages (service such Mortgage Loans are subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and conditions of the intent of this AgreementOther Pooling and Servicing Agreements and the Intercreditor Agreements. With respect The right to any Pledged Asset Mortgage Loan, service the Company does hereby transfer, assign, set-over and otherwise convey Serviced Loan Group is subject to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to terms and provisions of the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanrelated Intercreditor Agreements.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee the remaining documents constituting the Mortgage File for each Mortgage Loan (or or, with respect to any Non-Trust-Serviced Pari Passu Loan, copies thereof) within the Custodian, on behalf time period set forth therein. None of the Trustee) , the following documents Fiscal Agent, the Paying Agent, any Custodian, the Master Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may Special Servicer shall be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) Depositor to comply with the document delivery requirements of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred Purchase Agreements and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trusteethis Section 2.1(b). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Each Seller other than CDCMC, at its own expense, for the Mortgage Loan transferred Loans sold to the Depositor by such Seller, and assigned to the Trustee, at the Company shall deliver expense of CDCMC, for the CDCMC Loans sold to the Trustee Depositor by CDCMC shall promptly (or the Custodian) the following documents or instruments as promptly as practicable, but and in any event within 30 days, after 90 days following the receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required information necessary to record the assignments of the Mortgages referred such document) cause to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such be submitted for recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticefiling, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any as appropriate, each assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory referred to each Rating Agency in clauses (as evidenced in writingiv), recordation (vi)(B) and (ix)(B) of the definition of "Mortgage File" (except with respect to the Non-Trust-Serviced Pari Passu Loans). Each such assignment is not necessary shall reflect that it should be returned by the public recording office to protect the Trustee against discharge following recording or filing; provided that in those instances where the public recording office retains the original Assignment of such Mortgage, assignment of Assignment of Leases or assignment of UCC financing statements, the Trustee, for all Mortgage Loan by the Company or any valid assertion that any Person Loans, other than the Trustee has title to or any rights in such Mortgage Loan. In Principal Loans, and the event that Primary Servicers for the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided abovePrincipal Loans, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement obtain therefrom, at the expense of the Companyapplicable Seller, a certified copy of the recorded original and shall forward copies thereof to the Master Servicer and the Special Servicer. In connection with If any such recording document or filinginstrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the Company Trustee for all Mortgage Loans other than the Principal Loans, and the applicable Primary Servicers for the Principal Loans, shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding promptly notify the foregoing, at any time applicable Seller and the Company may record or file, applicable Seller for its respective Mortgage Loans shall promptly prepare or cause to be prepared and delivered to the Trustee a substitute therefor or cure such defect, as the case may be, and thereafter the Trustee shall upon receipt thereof from such Seller cause the same to be duly recorded or filed, as appropriate. The parties acknowledge the assignments obligation of Mortgages each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or UCC-3 financing statement before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the Primary Servicing Agreements or Exhibit 5 to the Mortgage Loan Purchase Agreements in favor of the Trustee, the Master Servicer and the Special Servicer to empower the Trustee, the Master Servicer and, in the event of the failure or incapacity of the Trustee and the Master Servicer, the Special Servicer, to submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as described in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). The Sellers agree to reasonably cooperate with the Trustee, the Master Servicer and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except that to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the related Seller's expense, after the periods set forth above; provided, however, the Trustee shall not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) herein all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the CustodianCustodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the following documents or instruments fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as promptly as practicable, but Exhibit 4 in any event within 30 days, after receipt by the Company of all such documents and instruments for all favor of the outstanding Mortgage Loans:
Custodian (1on behalf of the Trustee) and the Mortgage Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording indicated thereon (other than with respect that are required to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents be included in the Document Mortgage Files (other than any such documents so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with the Custodian, the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as originals are permitted by this Section 2) with respect to each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or copiesportions thereof, delivered prior to the Closing Date are to be held by the Trustee (or the Custodian on its behalf) in escrow on behalf of Seller at all times prior to the Closing Date. The Mortgage Files shall be released from escrow upon closing of the sale of the Mortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either (a) upon in blank or to the written request order of the Trustee in the following form: “Pay to the order of Wxxxx Fargo Bank, National Association, as Trustee for Mxxxxx Sxxxxxx Capital I Trust 2015-UBS8, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS8, without recourse, representation or (b) when warranty” or if the Company or the Trustee obtains actual notice or knowledge of original Mortgage Note is not included therein, then a Trigger Event. The Trustee shall have no obligation to request delivery lost note affidavit, with a copy of the Document Files unless Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and, if the Mortgage was executed pursuant to a Responsible Officer power of attorney, a certified true copy of the Trustee has actual notice power of attorney certified by the public recorder’s office, with evidence of recording thereon (if recording is customary in the jurisdiction in which such power of attorney was executed), or knowledge certified by a title insurance company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with evidence of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and recording thereon on or prior to the date of execution and delivery of this Agreement, 45th day following the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification Closing Date because of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan delay caused by the Company public recording office where such original Mortgage has been delivered for recordation or any valid assertion that any Person other than the Trustee because such original Mortgage has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided abovebeen lost after recordation, the Trustee Seller shall record deliver or cause to be recorded delivered to the Trustee (or filed the Custodian on its behalf) a true and correct copy of such assignment or UCC-3 financing statement at Mortgage, together with (i) in the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.case of
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Trust 2015-Ubs8), Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Trust 2015-Ubs8), Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Trust 2015-Ubs8)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With In addition, with respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an An assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc), Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc), Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) herein all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the CustodianCustodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the following documents or instruments fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as promptly as practicable, but Exhibit 4 in any event within 30 days, after receipt by the Company of all such documents and instruments for all favor of the outstanding Mortgage Loans:
Custodian (1on behalf of the Trustee) and the Mortgage Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording indicated thereon that are required to be included in the Mortgage Files (other than so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with respect to a Cooperative Loan);
(2) a copy the Custodian, the Trustee and the Special Servicer in connection with any additional powers of the title insurance policy (other than with respect to a Cooperative Loan);
(3) attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage that has been assigned Loan by or under authorization by any party hereto except to the Company, extent that the related recorded intervening assignment or assignments absence of Mortgage, showing a complete chain of assignment from document described in the originator to the Company (other than second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Cooperative Specially Serviced Mortgage Loan); and
. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (4or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to any Cooperative each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that has been assigned the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Company, Closing Date are to be held by the related filed intervening UCC-3 financing statements Trustee (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain or the Custodian on its behalf) in escrow on behalf of assignment from the named originator Seller at all times prior to the CompanyClosing Date. Pending such delivery, the Company The Mortgage Files shall retain in its files (a) copies be released from escrow upon closing of the documents described in clauses (1) and (3) sale of the preceding sentenceMortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of Citibank, N.A., as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2014-C17, Commercial Mortgage Pass-Through Certificates, Series 2014-C17, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (b) if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance binders company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with respect evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage Loans has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other than material modification, consolidation and extension agreements, if any, with respect evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a Cooperative true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “Citibank, N.A., as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2014-C17, Commercial Mortgage Pass-Through Certificates, Series 2014-C17” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related B Note or Serviced Companion Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies );
2.2.5 Originals of the Mortgage, all intervening assignments of Mortgage, if any, title insurance binder with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (i) in the Primary Insurance Policycase of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by Seller to be a true and complete copy of the original assignment submitted for recording, and (ii) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “Citibank, N.A., as Trustee for Xxxxxx Xxxxxxx Bank of America Xxxxxxx Xxxxx Trust 2014-C17, Commercial Mortgage Pass-Through Certificates, Series 2014-C17” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
2.2.7 The original or a copy of each guaranty, if any, described in constituting additional security for the two preceding sentences are collectively referred to herein as the "Document File" with respect to each repayment of such Mortgage Loan.;
2.2.8 The original (which may be electronic) The Company shall advise the Trustee in writing or a copy (which may be electronic) Title Insurance Policy or, if such delivery Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date or a preliminary title report binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date;
(A) Uniform Commercial Code (“UCC”) financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
2.2.10 Copies of the related ground lease(s), space lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related Serviced Companion Loan, Non-Serviced Companion Loan or B Note), if any, related to the Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the CustodianPooling and Servicing Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall not have occurred be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the first anniversary Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within 90 days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to the Mortgage Loan;
2.2.14 Third-party management agreements, if any, with respect to any Mortgaged Property;
2.2.15 Copies of any Environmental Insurance Policy;
2.2.16 Copies of any affidavit and indemnification agreement;
2.2.17 If the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to Seller in connection with the Seller’s origination or acquisition of the Mortgage Loan; and (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the Seller’s origination or acquisition of the Mortgage Loan; and
2.2.18 With respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date. The Company In addition, a copy of any ground lease, space lease or air rights lease shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee Master Servicer within thirty (or the Custodian30) as originals or copies) either (a) upon the written request days of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09Closing Date.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C17), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C17), Mortgage Loan Purchase Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C17)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, the Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (except as provided herein) recourse, all the right, title and interest of the Company in Seller, with the understanding that a Servicing Rights Purchase and to the Mortgage LoansSale Agreement, including all interest and principal received dated August 1, 2004, will be executed by the Company on or with respect to Seller and the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or beforeMaster Servicer, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby Seller shall deliver to or on behalf of the Trustee (or the CustodianTrustee, on behalf of the Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause (a) below) for each Mortgage Loan and on or prior to the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as Exhibit 5 in favor of the Trustee) , the following Master Servicer and the Special Servicer to empower the Trustee, the Master Servicer and, in the event of the failure or incapacity of the Trustee and the Master Servicer, the Special Servicer, to submit for recording, at the expense of the Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). The Seller agrees to reasonably cooperate with the Trustee, the Master Servicer and the Special Servicer in connection with any additional powers of attorney or instruments revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to:
(1) Each to any Mortgage Loan (other than by or under authorization by any Cooperative party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan or Designated Loan) so transferred and assigned:
remains unremedied as of the earlier of (i) The original Mortgage Notethe date that is 180 days following the delivery of notice of such absence to the Seller, endorsed without recourse but in blank by the Company, including all intervening endorsements showing a complete chain of endorsement no event earlier than 18 months from the originator to Closing Date, and (ii) the Companydate (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the Seller's expense, after the periods set forth above; provided, however, the Trustee shall not submit such assignments for recording if the Seller produces evidence that if it has sent any such Mortgage Note assignment for recording and certifies that the Seller is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement awaiting its return from the named payee to applicable recording office. In addition, not later than the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in 30th day following the name of MERS or its designeeClosing Date, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior Seller shall deliver to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor on behalf of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner each of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following remaining documents or instruments specified below (with such exceptions and additional time periods as promptly as practicable, but in any event within 30 days, after receipt are permitted by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1this Section) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) Loan (each, a "Mortgage File"). (The Company shall advise Seller acknowledges that the Trustee in writing if such delivery to term "without recourse" does not modify the Trustee (and the Custodian) shall not have occurred on or before the first anniversary duties of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Seller under Section 3.095 hereof.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Mortgage LoansTrustee pursuant to Section 14 thereof, including (iii) the Depositor's rights under the Co-Lender Agreement and the 2007-HQ11 Pooling and Servicing Agreement, and (iv) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III. Such assignment includes all interest and principal received by the Company or receivable 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, and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on the Certificates from and after the Cut-Off Date. The transfer and assignment of the Non-Trust-Serviced Pari Passu Loan to the Trustee and will not deliver any instrument of satisfaction or conveyance with respect the right to a service such Mortgage or a Mortgage Loan, or convey or purport Loan is subject to convey any interest in a Mortgage Loan, except in accordance with the terms and conditions of the intent of this 2007-HQ11 Pooling and Servicing Agreements and the Co-Lender Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee (or the Custodian, on behalf of remaining documents constituting the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage File for each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Noteor, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Non-Trust-Serviced Pari Passu Loan;
(v, copies thereof) The Security Agreement;
(vi) Copies within the time period set forth therein. None of the original UCC-1 financing statementTrustee, and any continuation statementsCustodian, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may any Master Servicer or any Special Servicer shall be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, in instances where a completed assignment Depositor to comply with the document delivery requirements of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Loan Purchase Agreements and this Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian2.1(b).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Each Seller other than Natixis and NCB, FSB, at its own expense, for the Mortgage Loan transferred Loans sold to the Depositor by such Seller, and assigned to the Trustee, at the Company shall deliver expense of Natixis and NCB, FSB, as applicable, for the Natixis Loans sold to the Trustee Depositor by Natixis, and the NCB, FSB Loans sold to the Depositor by NCB, FSB, shall promptly (or the Custodian) the following documents or instruments as promptly as practicable, but and in any event within 30 days, after 90 days following the receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required information necessary to record the assignments of the Mortgages referred such document) cause to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such be submitted for recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticefiling, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any as appropriate, each assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory referred to each Rating Agency in clauses (as evidenced in writingiv), recordation (vi) and (ix)(B) of the definition of "Mortgage File" (except with respect to the Non-Trust-Serviced Pari Passu Loan). Each such assignment is not necessary shall reflect that it should be returned by the public recording office to protect the Trustee against discharge of following recording or filing or such Mortgage Loan by the Company or any valid assertion that any Person other than party responsible for recording such assignment shall be responsible for forwarding such assignment to the Trustee has title (except with respect to any Mortgage File document recorded in the name of MERS or any rights its designee); provided that in such Mortgage Loan. In those instances where the event that public recording office retains the Company fails or refuses to record or file the original Assignment of Mortgage, assignment of Mortgages Assignment of Leases or UCC-3 assignment of UCC financing statement in the circumstances provided abovestatements, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement obtain therefrom, at the expense of the Companyapplicable Seller, a certified copy of the recorded original and shall forward copies thereof to the applicable Master Servicer and the applicable Special Servicer. In connection with If any such recording document or filinginstrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the Company Trustee shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding promptly notify the foregoing, at any time applicable Seller and the Company may record or file, applicable Seller for its respective Mortgage Loans shall promptly prepare or cause to be prepared and delivered to the Trustee a substitute therefor or cure such defect, as the case may be, and thereafter the Trustee shall upon receipt thereof from such Seller cause the same to be duly recorded or filed, as appropriate. The parties acknowledge the assignments obligation of Mortgages each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or UCC-3 financing statement before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the Primary Servicing Agreements or Exhibit 5 to the Mortgage Loan Purchase Agreements in favor of the Trustee, the applicable Master Servicer and the applicable Special Servicer to empower the Trustee, such Master Servicer and, in the event of the failure or incapacity of the Trustee and such Master Servicer, such Special Servicer, to submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as described in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). The Sellers agree to reasonably cooperate with the Trustee, the Master Servicer and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except that to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the related Seller's expense, after the periods set forth above; provided, however, the Trustee shall not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq13), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq13), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq13)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage LoansLoans identified on the Mortgage Loan Schedule, including the rights of the Depositor under the Assignment Agreement, payments made to the Trust Administrator by the Cap Administrator under the Cap Administration Agreement and the Cap Account and the Interest Rate Swap Agreement and Swap Account, and all other assets included or to be included in REMIC I. Such assignment includes all interest and principal received by the Company Depositor or the Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the such Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans Depositor herewith delivers to the Trustee to executed copies of the extent provided above Assignment Agreement, and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership Depositor hereby directs the Trust Administrator to execute, deliver and perform its obligations under the Interest Rate Swap Agreement (in its capacity as Supplemental Interest Trust Trustee) and the Cap Contract (in its capacity as Cap Trustee). The Depositor, the Servicer and the Holders of the Mortgage Loans Floating Rate Certificates by their acceptance of such Certificates acknowledge and agree that the Trustee Trust Administrator shall execute, deliver and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with perform its obligations under the terms Interest Rate Swap Agreement and the intent Cap Contract and shall do so solely in its capacity as Supplemental Interest Trust Trustee or Cap Trustee, as the case may be, and not in its individual capacity. Every provision of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees Agreement relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect conduct or affecting the liability of any Pledged Asset Mortgage Loan pursuant or affording protection to the Pledged Asset Mortgage Servicing AgreementTrust Administrator shall apply to the Trust Administrator’s execution of the Interest Rate Swap Agreement and the Cap Contract, and (iv) the performance of its rights as beneficiary under the Surety Bond in respect duties and satisfaction of any Pledged Asset Mortgage Loanits obligations thereunder. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company Depositor does hereby deliver to to, and deposit with, the Trustee (or the CustodianCustodian on its behalf, on behalf of the Trustee) the following documents or instruments (a “Mortgage File”) with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank by or to the Company, including all intervening endorsements Trustee showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement endorsements from the named payee to the CompanyTrustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee;
(ii) Any assumption The original recorded Mortgage, noting the presence of the MIN of the Mortgage Loan, if applicable, and modification agreementlanguage indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon or a copy of the Mortgage certified by the public recording office in those jurisdictions where the public recording office retains the original;
(iii) Except for any Unless the Mortgage which has been recorded in Loan is registered on the name of MERS or its designeeMERS® System, an assignment from the Originator or an Affiliate of the Originator to the Trustee in recordable form (of the Mortgage which may be included included, where permitted by local law, in a blanket assignment or assignments) assignments of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company including any intervening assignments and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement title from the original mortgagee named payee under the Mortgage to the Company;
Person assigning the Mortgage Loan to the Trustee (ii) A counterpart or to MERS, noting the presence of the Proprietary Lease and MIN, if the Assignment of Proprietary Lease executed in blank or to Mortgage Loan is registered on the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blankMERS® System);
(iv) A counterpart of the recognition Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement by the Cooperative of the interests of the mortgagee with respect applicable to the related Cooperative Mortgage Loan;; and
(v) The Security Agreement;
(vi) Copies original or a copy of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment insurance policy (which may be a blanket assignment for all Cooperative Loanscertificate or a short form policy relating to a master policy of title insurance) pertaining to the Mortgaged Property, or in the event such original title policy is unavailable, a copy of the interest preliminary title report and the lender’s recording instructions, with the original to be delivered within 180 days of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing Closing Date or an unbroken chain attorney’s opinion of title from in jurisdictions where such is the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee customary evidence of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee)title. Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the an original recorded Mortgage in recordable form cannot be delivered by the Company Depositor to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iiiCustodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of the such Mortgage, the Company Depositor may, (a) in lieu of delivering such original recorded Mortgage referred to in clause (ii) above, deliver to the Trustee (or the Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable formform referred to in clause (iii) above to the Trustee (or the Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or the Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such title insurance referred to in clause (vi) above, deliver to the Trustee (or the CustodianCustodian on behalf of the Trustee) the assignment in such form, otherwise complete except for recording information. With a binder with respect to any Mortgage that has been recorded in such policy (which may be a certificate relating to a master policy of title insurance) and deliver the name original or a copy of MERS or its designee, no assignment such policy (which may be a certificate relating to a master policy of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof title insurance) to the Trustee (or the Custodian).
(3Custodian on behalf of the Trustee) With respect to each Designated Loanwithin 180 days of the Closing Date, in instances where an original assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Company does hereby deliver Depositor to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to Custodian on behalf of the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to or concurrently with the date of execution and delivery of this Agreement, the CompanyDepositor may, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification original of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages such agreement referred to in Section 2.01(b)(1)(iiiclause (iv) above, deliver a certified copy thereof. To the extent not already recorded, except with respect to any Mortgage Loan for which MERS is identified on the Mortgage or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge on a properly recorded assignment of the occurrence Mortgage as the mortgagee of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event)record, the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filedServicer, at the Company's expenseexpense of the Sponsor shall promptly (and in no event later than five Business Days following the later of the Closing Date and the date of receipt by the Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to any Trust REMIC, in the appropriate public office for real property records or UCC financing statementsrecords, except that the Company need not cause each Assignment delivered to be so completed and recorded any assignment of mortgage which relates it pursuant to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loaniii) above. In the event that the Company fails any such Assignment is lost or refuses to record or file the assignment returned unrecorded because of Mortgages or UCC-3 financing statement in the circumstances provided abovea defect therein, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement Servicer, at the expense of the Company. In connection with any Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such recording or filingdefect, as the Company shall furnish case may be, and thereafter cause each such documents as may Assignment to be reasonably necessary to accomplish such recording or filingduly recorded. Notwithstanding the foregoing, at any time but without limiting the Company may record or filerequirement that such Assignments be in recordable form, neither the Servicer nor the Trustee shall be required to submit or cause to be recorded submitted for recording any Assignment delivered to it or filedthe Custodian pursuant to (iii) above if such recordation shall not, as of the Closing Date, be required by the Rating Agencies, as a condition to their assignment on the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided, however, notwithstanding the foregoing, the assignments Servicer shall submit each Assignment for recording, at no expense to the Trust Fund or the Servicer, upon the earliest to occur of: (A) reasonable direction by Holders of Mortgages or UCC-3 financing statement Certificates entitled to at the expense least 25% of the CompanyVoting Rights, (B) the occurrence of a Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Sponsor, (D) the occurrence of a servicing transfer as described in Section 7.02 of this Agreement and (E) with respect to any one Assignment the occurrence of a foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Sponsor fails to pay the cost of recording the Assignments, such expense will be paid by the Servicer and the Servicer shall be reimbursed for such expenses by the Trust as Servicing Advances. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or the Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or the Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or the Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee (or the Custodian on behalf of the Trustee) are and shall be held by or on behalf of the Sponsor, the Depositor or the Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee (or the Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or the Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any Mortgage Loan be included in the Trust that is a high-cost home loan as defined by the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe2), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Nc2), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe2)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfersells, assigntransfers, set-assigns, sets over and otherwise convey conveys to the Trustee for the benefit of the Certificateholders, without recourse (except as provided herein) recourse, all the right, title and interest of the Company Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund, other than any Subsequent Mortgage Loans, including all interest and principal received by the Company on or with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or beforewhich will be so sold, and all Principal Prepayments received on or beforetransferred, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assignassigned, set-over and otherwise convey conveyed on the related Subsequent Transfer Date. The Mortgage Loans permitted by the terms of this Agreement to be included in the Trustee without recourse (except as provided herein) Trust Fund are limited to (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating the Initial Mortgage Loans (which the Depositor is required hereunder to the Additional Collateral supporting any Pledged Asset Mortgage Loan, have acquired pursuant to Subsequent Transfer Agreements) and (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset the Substitute Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage LoanLoans.
(b) In connection with such the transfer and assignmentassignment of each Mortgage Loan, the Company does hereby deliver Depositor has delivered or caused to be delivered to Wells Fargo, in its capacity as Custodian, with respect to the WMC Mortxxxx Loans, to LaSalle with respect to the Decision One Mortgage Loans and to the Trustee (or with respect to the CustodianNC Capital Mortgage Loans, on behalf for the benefit of the Trustee) Certificateholders the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The 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 Company, 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 Company; provided, however, Depositor that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Companystate law does not so allow;
(ii) Any assumption and modification agreementthe original of any guaranty executed in connection with the Mortgage Note;
(iii) Except 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 which Loan, 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 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 certified by the applicable Responsible Party, originator, the Depositor, title company, escrow company or 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 within 14 days following the applicable 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 a certified true copy of such agreement submitted for recording;
(v) the original Assignment of Mortgage for each Mortgage Loan endorsed in blank (except with respect to MERS Designated Mortgage Loans);
(vi) the originals 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 Mortgage, the applicable Responsible Party shall deliver or cause to be delivered a photocopy of such intervening assignment, certified by the applicable Responsible Party, originator, Depositor, title company, escrow company or attorney, 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 within 14 days following the applicable 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, 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 the related policy binder or commitment for title from the title insurance company; and
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if provided). The applicable Responsible Party shall cause to be delivered to the Trustee or applicable Custodian, as applicable, the applicable recorded document promptly upon receipt from the respective recording office but, solely with respect to the WMC Mortgage Loans, in no event later than one year from the date such Mortgage Loan was sold by WMC to the Sponsor. If any Mortgage has been recorded in the name of MERS or its designeeMortgage Electronic Registration System, an assignment in recordable form Inc. (which may be included in a blanket assignment or assignments"MERS") of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment Assignment of the Mortgage in favor of the Trustee shall will be required to be prepared or delivered; delivered and instead, the Company applicable Servicer shall take all reasonable actions as are necessary at the expense of the applicable Responsible Party to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes the purpose of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. From time to time, and the Depositor or the applicable Servicer, as applicable, shall provide evidence thereof forward to the Trustee (or applicable Custodian, as applicable, additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan in accordance with the terms of this Agreement upon receipt of such documents. All such mortgage documents held by the Trustee or applicable Custodian).
(3) With respect , as applicable, as to each Designated LoanMortgage Loan shall constitute the "Custodial File". On or prior to the Closing Date, the Company does hereby each Responsible Party shall deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with applicable Custodian Assignments of Mortgages, in blank, for each Mortgage Loan transferred Loan. The Responsible Parties shall cause the Assignments of Mortgages and assigned 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 Company shall deliver to the Trustee (applicable Servicer, or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expenseDepositor, in the appropriate public office for real property records or UCC financing statementsrecords, except that each Assignment of Mortgage referred to in Section 2.01(b)(v). Notwithstanding the Company need foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not cause be required to be so completed and recorded submitted for recording with respect to any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under (i) if the laws of whichTrustee, on the basis of Custodians and each Rating Agency have received an Opinion of Counsel reasonably Counsel, satisfactory in form and substance to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), to the effect that the recordation of such assignment Assignments of Mortgage in any specific jurisdiction is not necessary to protect the Trustee against discharge of Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan by is a MERS Designated Mortgage Loan or (iii) if the Company 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 valid assertion loss that any Person other than occurs because an Assignment of Mortgage was not recorded, but only to the Trustee has title 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 June 1, 2006, Morgan Stanley ABS Capital I Inc. Trust 2006-HE5." In the event that anx xxxx Xxxxxxxent of Mortgage is lost or any rights in 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 Mortgage Loandefect 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 Company fails or refuses appropriate public recording office is not so delivered to record or file the assignment of Mortgages or UCC-3 financing statement applicable Custodian within one year following the date such Mortgage Loan was sold by such Responsible Party to the Sponsor, and in the circumstances provided aboveevent 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 shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filingCustodians, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companyapplicable.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2006-He5), Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2006-He5), Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2006-He5)
Conveyance of Mortgage Loans. (a) The Company2.1 Effective as of the Closing Date, concurrently with subject only to receipt of the execution consideration referred to in Section 1 hereof and delivery the satisfaction of this Agreementthe conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee Purchaser, without recourse (recourse, except as specifically provided herein) , all the right, title and interest of Seller, with the Company in understanding that a Servicing Rights Purchase and to the Mortgage LoansSale Agreement, including all interest dated August 1, 2006, will be executed by Seller and principal received by the Company on or with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or beforeMaster Servicer, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Trustee Closing Date, shall conform to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) requirements of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Agreement and the intent of this Pooling and Servicing Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby Seller shall deliver to the Trustee (or the Custodianon behalf of Trustee, on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as Exhibit 5 in favor of Trustee) , Master Servicer and Special Servicer to empower Trustee, Master Servicer and, in the following event of the failure or incapacity of Trustee and Master Servicer, Special Servicer, to submit for recording, at the expense of Seller, any Mortgage Loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to Trustee). Seller agrees to reasonably cooperate with Trustee, Master Servicer and Special Servicer in connection with any additional powers of attorney or instruments revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to:
(1) Each to any Mortgage Loan (other than by or under authorization by any Cooperative party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan or Designated Loan) so transferred and assigned:
remains unremedied as of the earlier of (i) The original Mortgage Notethe date that is 180 days following the delivery of notice of such absence to Seller, endorsed without recourse but in blank by the Company, including all intervening endorsements showing a complete chain of endorsement no event earlier than 18 months from the originator to Closing Date, and (ii) the Company; date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. Custodian shall submit such documents for recording, at Seller's expense, after the periods set forth above, provided, however, Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to or on behalf of Trustee each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions and additional time periods as are permitted by this Section 2) with respect to each Mortgage Loan (each, a "Mortgage File"). (Seller acknowledges that the term "without recourse" does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing Date are to be held by or on behalf of Trustee in escrow on behalf of Seller at all times prior to the Closing Date. The Mortgage Files shall be released from escrow upon closing of the sale of the Mortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing all intervening endorsements, endorsed "Pay to the order of HSBC Bank USA, National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-HQ9, without recourse, representation or warranty" or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder's office, with evidence of recording thereon (if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance company or escrow company to be a true copy thereof; provided that if such original Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may cannot be payable directly delivered with evidence of recording thereon on or prior to the Company 90th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or may show because such original Mortgage has been lost, Seller shall deliver or cause to be delivered to Trustee a complete chain true and correct copy of endorsement from such Mortgage, together with (i) in the named payee case of a delay caused by the public recording office, an Officer's Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the Company;
appropriate public recording official for recordation or (ii) Any assumption in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and modification agreementcomplete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other material modification, consolidation and extension agreements, if any, with evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 90th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a true copy of such modification, consolidation or extension certified by Seller together with (iiii) Except in the case of a delay caused by the public recording office, an Officer's Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for any recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage which for each Mortgage Loan, in form and substance acceptable for recording (except for recording information not yet available if the instrument being recorded has not been returned from the applicable recording office), signed by the holder of record in blank or in favor of "HSBC Bank USA, National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-HQ9," provided, if the related Mortgage has been recorded in the name of MERS or its designeeMortgage Electronic Registration Systems, an assignment in recordable form Inc. (which may be included in a blanket assignment or assignments"MERS") of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall such assignments will be required to be prepared submitted for recording or delivered; filing and instead, the Company Seller shall take all actions as are necessary to cause the Trust Fund Trustee to be shown as the owner of the related Mortgage Loan on the records record of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, MERS and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to Special Servicer evidence confirming that Trustee is shown as the Trustee (or owner on the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company record of MERS;
2.2.5 Originals of all such documents and instruments for all intervening assignments of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) except with respect to any Mortgage that has been assigned recorded in the name of MERS or its designees), if any, with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the Companyappropriate recorder's office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 90th day following the Closing Date from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer's Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening Assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening Assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the related recorded intervening original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 90th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment or assignments of Mortgage, such Assignment of Leases with evidence of recording thereon and showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete recorded chain of assignment from the named originator assignee to the Company. Pending holder of record, and if any such deliveryassignment of such Assignment of Leases has not been returned from the applicable public recording office, the Company shall retain in its files (a) copies a copy of such assignment certified by Seller to be a true and complete copy of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereonoriginal assignment submitted for recording, and (bii) title insurance binders with respect to an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of "HSBC Bank USA, National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain Pass-Through Certificates, Series 2006-HQ9," which assignment may be effected in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is Assignment of Mortgage, provided, if the related Mortgage has been recorded in force. (The copies the name of MERS or its designee, no assignment of Assignment of Leases in favor of Trustee will be required to be recorded or delivered and instead, Seller shall take all actions as are necessary to cause Trustee to be shown as the owner of the Mortgage, intervening assignments related Mortgage on the record of MortgageMERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS and shall deliver to Special Servicer evidence confirming that Trustee is shown as the owner on the record of MERS;
2.2.7 The original or a copy of each guaranty, if any, title insurance binder and constituting additional security for the Primary repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event such original Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy thereof certified by the title company with the original Title Insurance Policy to follow within 180 days of the Closing Date or a preliminary title report with an original Title Insurance Policy to follow within 180 days of the Closing Date;
(A) Copies of UCC financing statements (together with all assignments thereof) and (B) UCC-2 or UCC-3 financing statements assigning such UCC financing statements to Trustee executed and delivered in connection with the Mortgage Loan, provided, if the related Mortgage has been recorded in the name of MERS or its designee, no such financing statements will be required to be recorded or delivered and instead, Seller shall take all actions as are necessary to cause Trustee to be shown as the owner of the related Mortgage on the record of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS and shall deliver to Special Servicer evidence confirming that Trustee is shown as the owner on the record of MERS;
2.2.10 Copies of the related ground lease(s), if any, described to any Mortgage Loan where the Mortgagor is the lessee under such ground lease and there is a lien in favor of the two preceding sentences are collectively referred mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan Pair Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related B Note), if any, related to herein as the "Document File" with respect to each any Mortgage Loan.;
2.2.12 Either (A) The Company shall advise the Trustee in writing original of each letter of credit, if any, constituting additional collateral for such delivery Mortgage Loan (other than letters of credit representing tenant security deposits which have been collaterally assigned to the lender), which shall be assigned and delivered to Trustee on behalf of the Trust with a copy to be held by Primary Servicer (or Master Servicer), and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan, the Pooling and Servicing Agreement and the CustodianPrimary Servicing Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan (other than letters of credit representing tenant security deposits which have been collaterally assigned to the lender), which shall not have occurred be held by Primary Servicer (or Master Servicer) on behalf of Trustee, with a copy to be held by Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the first anniversary Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within 30 days (but in any event to obtain within 90 days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, any letter of credit held by Primary Servicer (or Master Servicer) acknowledges that any letter of credit held by it shall be held in its capacity as agent of the Trust, and if Primary Servicer (or Master Servicer) sells its rights to service the applicable Mortgage Loan, Primary Servicer (or Master Servicer) has agreed to assign the applicable letter of credit to the Trust or at the direction of Special Servicer to such party as Special Servicer may instruct, in each case, at the expense of Primary Servicer (or Master Servicer). Primary Servicer (or Master Servicer) has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to any Mortgage Loan;
2.2.14 Copies of third-party management agreements, if any, for all hotels and for such other Mortgaged Properties securing Mortgage Loans with a Cut-Off Date principal balance equal to or greater than $20,000,000;
2.2.15 The original or a copy of any Environmental Insurance Policy; and
2.2.16 Any affidavit and indemnification agreement. The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to Primary Servicer, Master Servicer or Trustee (as the case may be) within 45 days of the Closing Date. The Company In addition, a copy of any ground lease shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request Primary Servicer within 30 days of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09Closing Date.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Trust 2006 - HQ9), Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Trust 2006 - HQ9), Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Trust 2006 - HQ9)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other assets included or to be included in the Trust Fund; provided that such assignment shall not include any Servicing Rights with respect to the Mortgage Loans. Such assignment includes all interest and principal due to the Depositor or the Master Servicer after the Cut-Off Date with respect to the Mortgage Loans. In addition, on or prior to the Closing Date, the Depositor shall cause the Yield Maintenance Provider to enter into the Yield Maintenance Agreements with the Securities Administrator. The Depositor hereby directs the Securities Administrator to execute, not in its individual capacity, but solely as Securities Administrator on behalf of the Trust, and deliver the Yield Maintenance Agreements. Notwithstanding anything provided herein to the contrary, each of the parties hereto agrees and acknowledges that notwithstanding the transfer, conveyance and assignment of the Mortgage Loans from the Depositor to the Trustee pursuant to this Agreement, the Servicing Rights Owner remains the sole and exclusive owner of the Servicing Rights with respect to the SRO Mortgage Loans. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreements to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under each Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of Mortgage Loan documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, (i) the Company does hereby deliver to Depositor directs the Trustee to appoint The Bank of New York as a Custodian, and (or ii) the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01 or the BONY Custodial Agreement, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the following form: “Pay to the order of Deutsche Bank National Trust Company, including all intervening endorsements showing as Trustee for HarborView Mortgage Loan Trust 2004-8, Mortgage Loan Pass-Through Certificates, Series 2004-8, without recourse”, or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a complete chain copy of endorsement from the originator to the Companyrelated mortgage note; provided, however, that if such substitutions of Lost Note Affidavits for original Mortgage Note Notes may occur only with respect to Mortgage Loans the aggregate Cut-Off Date Principal Balance of which is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly less than or equal to 2% of the Company or may show a complete chain of endorsement from the named payee to the CompanyCut-Off Date Aggregate Principal Balance;
(ii) Any assumption except as provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name case of each MERS or its designeeMortgage Loan, an assignment in recordable form (which may be included in a blanket assignment or assignments) the original Mortgage, noting the presence of the MIN for that Mortgage to Loan and either language indicating that the Trustee; and
(2) Each Cooperative Mortgage Loan (other than is a Designated MOM Loan if the Mortgage Loan is a MOM Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that or if such Mortgage Note Loan was not a MOM Loan at origination, the original Mortgage and the assignment to MERS, in each case 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, together with an Officer’s Certificate of the Seller certifying that the copy of such Mortgage delivered to the Trustee (or its Custodian) is a Confirmatory true copy and that the original of such Mortgage Note, such Confirmatory Mortgage Note may be payable directly has been forwarded to the Company or may show public recording office, or, in the case of a complete chain Mortgage that has been lost, a copy thereof (certified as provided for under the laws of endorsement from the named payee appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Company;
(ii) A counterpart of the Proprietary Lease Trustee and the Assignment of Proprietary Lease executed Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in blank or to the originator of the Cooperative Mortgage Loan;
(iii) The related Cooperative Stock Certificatethe original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an undated stock power Officer’s Certificate of the Seller, title company, escrow agent or closing attorney certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or other similar instrumentits Custodian) executed in blankon behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office;
(iv) A counterpart in the case of the recognition agreement by the Cooperative each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment of the interests of the mortgagee with respect Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned to the related Cooperative Loan“Deutsche Bank National Trust Company, as Trustee for HarborView Mortgage Loan Trust 2004-8, Mortgage Loan Pass-Through Certificates, Series 2004-8, without recourse;”
(v) The Security Agreementin the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in the case of an intervening Assignment of Mortgage that has been lost, a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee that such original intervening Assignment of Mortgage is not required to enforce the Trustee’s interest in the Mortgage Loans;
(vi) Copies of the original UCC-1 financing statementPrimary Insurance Policy, and any continuation statementsif any, filed by the originator of such Cooperative Loan as secured partyor certificate, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Leaseif any;
(vii) If applicable, copies the original or a certified copy of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of lender’s title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;insurance policy; and
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in Cooperative Loan, the name of MERS or its designee, no Cooperative Loan Documents. In connection with the assignment of any MERS Mortgage Loan, the Mortgage in favor Seller agrees that it will take (or shall cause the applicable Servicer to take), at the expense of the Trustee shall be required to be prepared or delivered; insteadSeller (with the cooperation of the Depositor, the Company shall take all Trustee and the Master Servicer), such actions as are necessary to cause the Trust Fund MERS® System to be shown as indicate that such Mortgage Loans have been assigned by the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the Custodian).
(3case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the HarborView Mortgage Loan Trust 2004-8. With respect to each Designated LoanCooperative Loan the Seller, on behalf of the Company Depositor does hereby deliver to the Trustee the related Cooperative Loan Documents and the Seller will take (or cause the Custodianapplicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary under applicable law (including but not limited to the relevant UCC) in order to perfect the Designated Loan Closing Documents.
(c) In connection interest of the Trustee in the related Mortgaged Property. Assignments of each Mortgage with respect to each Mortgage Loan transferred that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and assigned not at the expense of the Trust or the Trustee) acceptable to the Trustee, the Company Rating Agency and the Master Servicer, recording in such states is not required to protect the Trustee’s interest in the related Mortgage Loans; provided, further, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall deliver to be submitted for recording by the Trustee Seller (or the Custodian) Seller will cause the following documents or instruments as promptly as practicableapplicable Servicer to submit each such assignment for recording), but in any event within 30 days, after receipt by at the Company of all such documents cost and instruments for all expense of the outstanding Mortgage Loans:
Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Mortgage Loan that has been assigned is not a MERS Mortgage Loan. The Trustee agrees to execute and deliver to the CompanyDepositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the related filed intervening UCC-3 financing statements (form attached as Exhibit G-1 hereto. If the original lender’s title insurance policy, or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(x) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) Trustee, promptly upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge receipt thereof, any other documents constituting a part of a Trigger EventMortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of For Mortgage Loans which (if any) that have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this AgreementClosing Date, the CompanySeller, in lieu of delivering the above documents to the Trusteedocuments, herewith delivers to the Trustee a certification of a Servicing Officer Trustee, or to the Custodian on behalf of the nature set forth Trustee, an Officer’s Certificate which shall include a statement to the effect that all amounts received in Section 3.09.
(d) The Company shall not be connection with such prepayment that are required to record be deposited in the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) Distribution Account have been so deposited. All original documents that are not delivered to the Trustee unless on behalf of the Company Trust shall be held by the Master Servicer or the Trustee obtains actual notice or knowledge applicable Servicer in trust for the Trustee, for the benefit of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if Trust and the Company Certificateholders. The Depositor herewith delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings an executed copy of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyPurchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2004-8), Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2004-8)
Conveyance of Mortgage Loans. (a) Each Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of such Seller in and to the applicable Initial Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of the Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the applicable Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The CompanyMaster Servicer confirms that, on behalf of the Sellers, concurrently with the transfer and assignment, it or the applicable Seller has deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor (i) sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Class AF-5B Insurer, without recourse, all right title and interest in the Initial Mortgage Loans and (ii) causes the Class AF-5B Insurer to deliver the Class AF-5B Policy to the Trustee. CHL further agrees (x) to cause The Bank of New York to enter into the Corridor Contract Administration Agreement as Corridor Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate corridor transaction evidenced by each Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Corridor Contract Administrator, on the terms and conditions set forth in the Corridor Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, each Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of such Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of any related Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date. Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Class AF-5B Insurer, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) Each Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in and to the Mortgage LoansCertificateholders, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and to the Mortgage Loans portion of the Trust Fund not otherwise conveyed to the Trustee to the extent provided above and that retention of record title of Mortgages (subject pursuant to Section 2.01(d2.01(a) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanb).
(bd) In connection with such transfer and assignment, On any Business Day during the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank Funding Period designated by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage CHL to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from Sellers, the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease Depositor and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateTrustee shall complete, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security execute and deliver a Subsequent Transfer Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with After the execution and delivery of this such Subsequent Transfer Agreement, due to a delay in connection with recording of on the MortgageSubsequent Transfer Date, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required set aside in the Pre-Funding Account an amount equal to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian)Subsequent Transfer Date Purchase Amount.
(3e) With respect to each Designated Loan, The transfer of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with satisfaction of each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) of the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loansconditions:
(1) the Mortgage with evidence Trustee and the Underwriters will be provided Opinions of recording indicated thereon (other than Counsel addressed to the Rating Agencies as with respect to a Cooperative Loanthe sale of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies with respect to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered as provided in Section 2.01(f);
(2) a copy the execution and delivery of such Subsequent Transfer Agreement or conveyance of the title insurance policy related Subsequent Mortgage Loans does not result in a reduction or 62 withdrawal of the any ratings assigned to the Certificates by the Ratings Agencies (other than with respect without regard to a Cooperative Loanthe Class AF-5B Policy, in the case of the Class AF-5B Certificates);
(3) with respect to any Mortgage that has been assigned the Depositor shall deliver to the CompanyTrustee an Officer's Certificate confirming the satisfaction of each of the conditions set forth in this Section 2.01(e) required to be satisfied by such Subsequent Transfer Date;
(4) each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to it under this Agreement, the related recorded intervening assignment or assignments of Mortgageprovided, showing a complete chain of assignment from the originator to the Company (other than however, that with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing breach of a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) representation and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than warranty with respect to a Cooperative LoanSubsequent Mortgage Loan set forth in this clause (4). The Company , the obligation under Section 2.03(d) of this Agreement of the applicable Seller, to cure, repurchase or replace such Subsequent Mortgage Loan shall also retain constitute the sole remedy against such Seller respecting such breach available to Certificateholders, the Depositor or the Trustee;
(5) the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were selected in its files a manner reasonably believed not to be adverse to the Primary Insurance Policy evidencing any primary interests of the Certificateholders;
(6) no Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was 30 or more days delinquent;
(7) following the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer Date, the characteristics of each Loan Group will not vary by more than the amount specified below (other than the percentage of Mortgage Loans secured by Mortgaged Properties located in the State of California, which will not exceed 50% of the Mortgage Pool and the percentage of mortgage insurance relating to loans in the Credit Grade Categories of "C" or below, which will not exceed 10% of the Mortgage Loans during in each Loan Group) from the period when characteristics listed below; provided that for the related insurance is in force. (The copies purpose of making such calculations, the characteristics for any Initial Mortgage Loan made will be taken as of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Initial Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer characteristics for any Subsequent Mortgage Loans will be taken as of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Subsequent Cut-off Date;
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Cwabs Inc Asset Backed Certificates Series 2005-3), Pooling and Servicing Agreement (Cwabs Inc Asset Backed Certificates Series 2005-3)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Collection Account and the Reserve Accounts, (ii) the Depositor’s rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor’s rights under any Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan, (v) with respect to the Class PST Certificates, each of the Class PST Components and (vi) all other assets included or to be included in REMIC I or the Class J Grantor Trust. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after their respective Due Dates in July 2012. The transfer of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or beforethe related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the Cut-off Date)purchase price to be paid includes a portion attributable to interest accruing on the Certificates from and after July 1, 2012. The Company acknowledges it has sold all right, title transfer and interest in and to the assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the extent provided above terms and that retention conditions of record title of Mortgages (subject to Section 2.01(d) the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement) is for convenience only and , hereby agrees that such Mortgage Loans remain subject to the Company holds record title solely as custodian for the Trustee for benefit terms of the Certificateholdersrelated Non-Serviced Mortgage Loan Intercreditor Agreement and, with respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, the related Intercreditor Agreement. The Company agrees that it will take no action inconsistent with ownership transfer and assignment of the any A Notes and Serviced Pari Passu Mortgage Loans by to the Trustee and will not deliver any instrument the right to service such Mortgage Loans are subject to the terms of satisfaction the related Intercreditor Agreements, and the Trustee, by the execution and delivery of this Agreement, hereby agrees, that such Mortgage Loans remain subject to the terms of the related Intercreditor Agreements (or conveyance with respect to a Joint Mortgage or Loan treated as a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except Loan Pair in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage LoanSection 8.30 hereof, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset applicable Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, documents and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage LoanSection 8.30 hereof).
(b) In connection with such transfer and assignmentthe Depositor’s assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with the Custodian (on behalf of the Trustee), on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of “Mortgage File.” Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee Custodian (or the Custodian, on behalf of the Trustee) the following remaining documents or instruments with respect to:
(1) Each constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee, the Certificate Administrator, any Custodian, the Master Servicer or the Special Servicer shall be liable for any failure by any Seller or the Depositor to comply with the document delivery requirements of the Mortgage Loan Purchase Agreements and this Section 2.1(b). Promptly after the Closing Date (other but no later than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note10 Business Days after the Closing Date), endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator Custodian shall deliver to the Company; providedMaster Servicer each original letter of credit set forth on Schedule XVI hereto, however, that if and the Master Servicer shall hold such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly original letters of credit on behalf of the Trustee pursuant to the Company or may show a complete chain of endorsement from the named payee to the Company;
and in accordance with clause (ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignmentsxii) of the definition of “Mortgage File”. Notwithstanding anything to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Notecontrary contained herein, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to a Joint Mortgage Loan, the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies obligations of each of the original UCC-1 financing statement, and any continuation statements, filed by applicable Sellers to deliver a Mortgage Note to the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest Custodian (on behalf of the originator in Trustee), shall be limited to delivery of only the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent Mortgage Note held by such party to the appropriate public office for filing, showing an unbroken chain Custodian (on behalf of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any a Joint Mortgage that has been recorded in Loan, the name of MERS or its designee, no assignment obligations of the Mortgage in favor of applicable Sellers to deliver the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner remaining portion of the related Mortgage Loan on the records of MERS for purposes File or any document required to be delivered with respect thereto shall be joint and several, provided that either of the system applicable Sellers may deliver one Mortgage File or one of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof any other document required to the Trustee (or the Custodian).
(3) With be delivered with respect to such Mortgage Loan hereunder and such delivery shall satisfy such delivery requirements for each Designated Loan, of the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documentsapplicable Sellers.
(c) In connection with each The applicable Seller has agreed in the applicable Mortgage Loan transferred and assigned Purchase Agreement, at the expense of such Seller as to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company each of all such documents and instruments for all of the outstanding its respective Mortgage Loans:
, (1i) in the Mortgage with evidence case of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1iv) and (3vi)(B) of the preceding sentence, without evidence definition of recording thereon, “Mortgage File” within forty-five (45) days following the Closing Date and (bii) title insurance binders with respect to in the Mortgage Loans case of clause (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies ix)(B) of the Mortgage, intervening assignments definition of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document “Mortgage File" with respect to each Mortgage Loan.” within ninety (90) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of days following the Closing Date. The Company shall promptly furnish , to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such deliver for submission for recording or filing shall not be required if by the Company delivers to Depositor, the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings Custodian (on behalf of the Certificates. The party obtaining actual notice Trustee) or knowledge the agents of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeeither, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except as appropriate, each assignment referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of “Mortgage File.” Each such assignment shall reflect that it should be returned by the Company need not cause public recording office to be so completed and recorded any the Custodian (on behalf of the Trustee) following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, assignment of mortgage which relates Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall obtain therefrom a certified copy of the recorded original and forward such copy to the Custodian (on behalf of the Trustee) and the Special Servicer. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the applicable Seller shall, pursuant to the applicable Mortgage Loan secured by property in a jurisdiction under the laws of whichPurchase Agreement, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall upon receipt thereof cause the same to be duly recorded or filed such assignment filed, as appropriate. The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to or UCC-3 financing statement on behalf of the Trustee, on or before the fifth (5th) Business Day after the Closing Date, five (5) limited powers of attorney substantially in the form attached as Exhibit 4 to the Mortgage Loan Purchase Agreement in favor of the Custodian (on behalf of the Trustee) and the Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as set forth in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to or on behalf of the Trustee). In The Sellers agree to reasonably cooperate with the Custodian, the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such recording parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or filingunder authorization by any party hereto except to the extent that the absence of a document described in the second (2nd) preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian shall submit such documents for recording, at the related Seller’s expense, after the periods set forth above; provided, the Company Custodian shall furnish not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the possession of the Depositor or the Sellers that relate to the Mortgage Loans, Serviced Companion Loans or B Notes and that are not required to be a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer, on or before the date that is forty-five (45) days following the Closing Date and shall be held by the Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer by the related Seller, the Servicer Mortgage File, will include, to the extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the following items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, the insurance policies or certificates (as may be reasonably necessary to accomplish such recording or filingapplicable), any financial statements on the property, any escrow analysis, the tax bills, the Appraisal, the environmental report, the engineering report, the asset summary, any financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies. Notwithstanding the foregoing, at no Seller shall be required to deliver any time draft documents, or any attorney-client communications that are privileged communications or constitute legal or other due diligence analyses or attorney work product, or internal communications of the Company may record Seller or fileits affiliates among themselves or with their respective attorneys, or credit underwriting or other analyses or data (and, if received, shall be returned and any copies thereof destroyed). Delivery of any of the foregoing documents to a sub-servicer shall be deemed delivery to the Master Servicer and satisfy the Depositor’s obligations under this Section 2.1(d). Neither the Master Servicer nor the Special Servicer shall have any liability for the absence of any of the foregoing items from the Servicer Mortgage File if such item was not delivered by the related Seller.
(e) In connection with the Depositor’s assignment pursuant to Section 2.1(a) above, the Depositor shall deliver to the Trustee on or before the Closing Date a copy of a fully executed counterpart of each Mortgage Loan Purchase Agreement, as in full force and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall contain the representations and warranties (and the exceptions thereto) made by the Sellers with respect to each related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMCH Loans from MSMCH and the Bank of America Loans from Bank of America. The Depositor shall deliver or cause to be recorded delivered the original Mortgage Notes (or filedlost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of “Mortgage File”) relating to the Mortgage Loans to the Custodian (on behalf of the Trustee), endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording of multiple assignment documents, Bank of America and MSMCH, as applicable, are required under the Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages and assignments of Assignments of Leases and assignments of UCC financing statements naming the Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the fact that the assignments shall name the Trustee, on behalf of the Certificateholders, as the assignee, the assignments parties hereto acknowledge and agree that for all purposes the MSMCH Loans shall be deemed to have been transferred from MSMCH to the Depositor and the Bank of Mortgages or UCC-3 financing statement at America Loans shall be deemed to have been transferred from Bank of America to the expense Depositor, and all Mortgage Loans shall be deemed to have been transferred from the Depositor to the Trustee on behalf of the CompanyCertificateholders.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C5), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C5)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With In addition, with respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an An assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1i) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2ii) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3iii) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4iv) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1i) and (3iii) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing evidence of any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. Such evidence shall consist, for each Mortgage Loan, of a certificate of private mortgage insurance relating to such Mortgage Loan or an electronic screen print setting forth the information contained in such certificate of private mortgage insurance, including, without limitation, information relating to the name of the mortgage insurance carrier, the certificate number, the loan amount, the property address, the effective date of coverage, the amount of coverage and the expiration date of the policy. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two second and third preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc), Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey in trust to the Trustee without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) the rights of the Depositor under the Mortgage Loan Purchase Agreement and the Master Agreements (as assigned to the Depositor pursuant to the terms of the related Assignment Agreements), including (v) the right to receive any amounts payable under the Basis Risk Cap Agreement and the Interest Rate Swap Agreement, (vi) payments made to the Cap Trustee by the Interest Rate Cap Provider and the Cap Account, (vii) all other assets included or to be included in the Trust Fund and (viii) all proceeds of any of the foregoing. Such assignment includes all interest and principal received due and collected by the Company on Depositor or the Servicer after the Cut-off Date with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date)Loans. The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company Depositor, does hereby deliver to to, and deposit with, the Trustee (or the Custodian, related Custodian on behalf of the Trustee) ), the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
assigned (i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of , a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of “Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.File”):
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-1), Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-1)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey to the Trustee Trustee, on behalf of the Trust, without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage LoansLoan Schedule, including the related Cut-off Date Principal Balance, all interest accruing thereon after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) the Mortgage File for each such Mortgage Loan; (iii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure, (iv) its interest in any insurance policies in respect of the Mortgage loans, (v) all proceeds of any of the foregoing, (vi) the rights of the Depositor under the Mortgage Loan Purchase Agreement and (vii) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal received by due to the Company on Depositor or the Servicer after the Cut-off Date with respect to the Mortgage Loans Loans. On the Closing Date, the Depositor shall pay, without any right of reimbursement from the Trust, to the Cap Provider the “Fixed Amount” (other than payments of principal and interest as defined in the Cap Agreement) due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan Cap Provider pursuant to the Pledged Asset Mortgage Servicing terms of the Cap Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Trustee) Depositor, does hereby deliver or cause to be delivered to, and deposit with the Custodian, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either (A) in blank by or (B) in the Company, including all intervening endorsements showing a complete chain of endorsement from the originator following form: “Pay to the Company; providedorder of LaSalle Bank National Association, howeveras Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, that if such Mortgage Note is a Confirmatory Series 2006-CB7, without recourse,” or with respect to any lost Mortgage Note, such Confirmatory an original Lost Note Affidavit, together with a copy of the related Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the CompanyNote;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the original recorded power of attorney, if the Mortgage Loans (other than with respect was executed pursuant to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies power of the Mortgageattorney, intervening assignments with evidence of Mortgagerecording thereon or, if anysuch Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, title insurance binder and the Primary Insurance Policyhas been lost or is not otherwise available, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any copy of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes Mortgage or power of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeattorney, as the case may be, the Company shall insert the recording or filing information in the assignments certified to be a true and complete copy of the Mortgages original submitted for recording;
(iii) an original Assignment of Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned either (A) in blank or UCC-3 assignments (B) to “LaSalle Bank National Association, as Trustee for the Trustee C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-CB7, without recourse”;
(iv) an original, or a certified copy thereof, of any intervening assignment of Mortgage showing a complete chain of assignments;
(v) the original or a certified copy of lender’s title insurance policy; and
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any. The Servicer shall cause the Assignments of Mortgage which were delivered in blank to be completed and shall cause all Assignments referred to in Section 2.01(a)(iii) hereof and, to the same extent necessary, in Section 2.01(a)(iv) hereof to be recorded or filed, at recorded. The Servicer shall be required to deliver such assignments for recording within 30 days of the Company's expense, in Closing Date. The Servicer shall furnish the appropriate public office Custodian with a copy of each Assignment of Mortgage submitted for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loanrecording. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Company fails Servicer shall promptly have a substitute Assignment prepared or refuses have such defect cured, as the case may be, and thereafter cause each such Assignment to record be duly recorded. If any of the documents referred to in Section 2.01(b)(ii), (iii) or file (iv) above has as of the assignment Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of Mortgages or UCC-3 financing statement such document, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Custodian no later than the Closing Date, of a copy of each such document certified by the Seller in the circumstances provided abovecase of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Seller, delivery to the Trustee Custodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. The Seller shall record deliver or cause to be recorded delivered to the Custodian promptly upon receipt thereof any other 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 filed modification of any Mortgage Loan. Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Seller shall have 120 days to cure such assignment defect or UCC-3 financing statement at 150 days following the expense Closing Date, in the case of missing Mortgages or Assignments or deliver such missing document to the Trustee or the Custodian. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03. In the event that any Mortgage Note is endorsed in blank as of the Company. In connection with any such recording or filingClosing Date, promptly following the Company Closing Date the Servicer shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be completed such endorsements “Pay to the order of LaSalle Bank National Association, as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-CB7, without recourse.” In the event that any Assignments of Mortgage is not recorded or filedis improperly recorded (as a result of actions taken or not taken by a person other than the Servicer), neither the assignments Servicer nor the Trustee shall have any liability for its failure to receive notices related to such Assignment of Mortgages or UCC-3 financing statement at Mortgage. The Depositor herewith delivers to the expense Trustee executed copies of the CompanyMortgage Loan Purchase Agreement. The parties hereto understand and agree that it is not intended that any Mortgage Loan be included in the Trust that is a “High Cost Home Loan” as defined by the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending law.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (C-Bass 2006-Cb7 Trust), Pooling and Servicing Agreement (C-Bass 2006-Cb7 Trust)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, a Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Excess Interest Grantor Trust for the benefit of the Class T Certificates. Such assignment includes all interest and principal received by the Company or receivable 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, and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on the Certificates from and after the Cut-Off Date. The transfer and assignment of any Non-Serviced Mortgage Loan to the Trustee and will not deliver any instrument of satisfaction or conveyance with respect the right to a service such Mortgage or a Mortgage Loan, or convey or purport Loans are subject to convey any interest in a Mortgage Loan, except in accordance with the terms and conditions of the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, setrelated Non-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Serviced Mortgage Loan pursuant to Pooling and Servicing Agreement and the Pledged Asset related Non-Serviced Mortgage Servicing Loan Intercreditor Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver hereby agrees that such Mortgage Loans remain subject to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name terms of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related each Non-Serviced Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERSIntercreditor Agreement and, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan, each Loan Pair Intercreditor Agreement.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005-Hq6), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005-Hq6)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey in trust to the Trustee without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) the rights of the Depositor under the Master Agreement (as assigned to the Depositor pursuant to the terms of the Assignment Agreement), including (v) the right to receive any amounts payable under the Basis Risk Cap Agreement; (vi) payments made to the Trustee by the Swap Provider under the Interst Rate Swap Agreement, (vii) payments made to the Cap Trustee by the Interest Rate Cap Provider and the Cap Account,, (viii) all other assets included or to be included in the Trust Fund and (ix) all proceeds of any of the foregoing. Such assignment includes all interest and principal received due and collected by the Company on Depositor or the Servicer after the Cut-off Date with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date)Loans. The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company Depositor, does hereby deliver to to, and deposit with the Trustee (or the Custodian, Custodian on behalf of the Trustee) , the following documents or instruments with respect to:
(1) Each to each Initial Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form2.08, deliver or caused to be delivered to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With with respect to each Designated Subsequent Mortgage Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan., a “Mortgage File”):
(i) The Company shall advise the Trustee original Mortgage Note, endorsed either (A) in writing if such delivery blank or (B) in the following form: “Pay to the Trustee (and order of Deutsche Bank National Trust Company, as Trustee, without recourse” or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the Custodian) shall not have occurred on original mortgage note was lost, misplaced or before the first anniversary destroyed, together with a copy of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Eventrelated mortgage note; provided, however, that such recording substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or filing shall not be required equal to 1.00% of the Pool Balance as of the Cut-off Date;
(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 Company delivers Mortgage Loan is a MOM Loan), 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the Trustee applicable public recording office, has been lost or is not otherwise available, a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any copy of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes Mortgage or power of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeattorney, as the case may be, the Company shall insert the recording or filing information in the assignments certified to be a true and complete copy of the Mortgages original submitted for recording;
(iii) unless the Mortgage Loan is a MERS® loan, an original Assignment, in form and substance acceptable for recording. The Mortgage shall be assigned either (A) in blank or UCC-3 (B) to “Deutsche Bank National Trust Company, as Trustee, without recourse”;
(iv) an original of any intervening assignment of Mortgage showing a complete chain of assignments (or to MERS if the Mortgage Loan is a MERS loan;
(v) the original or a copy of lender’s title insurance policy; and
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any. The Depositor herewith also delivers to the Trustee an executed copy of each Assignment Agreement and each Master Agreement. The Trustee agrees to execute and deliver (or cause the Custodian to execute and deliver) and to the Depositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the form attached as Exhibit F-3 hereto. If any of the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of the Closing Date (or Subsequent Transfer Date, with respect to Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Custodian on behalf of the Trustee no later than the Closing Date (or Subsequent Transfer Date, with respect to Subsequent Mortgage Loans), of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender’s title insurance policy, or a certified copy thereof, was not delivered pursuant to Section 2.01(v) above, the Depositor shall deliver or cause to be delivered to the Custodian on behalf of the Trustee, the original or a copy of a written commitment or interim binder or preliminary report of title issued by the title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Custodian on behalf of the Trustee, promptly upon receipt thereof. The Servicer or the Depositor shall deliver or cause to be delivered to the Custodian on behalf of the Trustee promptly upon receipt thereof any other 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. Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Trustee (or the Custodian on behalf of the Trustee) shall notify the Servicer and the Servicer shall enforce the obligations of the Originator under the Master Agreement to cure such defect or deliver such missing document to the Trustee or the Custodian within 90 days. If the Originator does not cure such defect or deliver such missing document within such time period, the Servicer shall use commercially reasonable efforts to attempt to enforce the obligations of the Originator to either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03; provided, however, that the Servicer shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Servicer in enforcing any obligations of the Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the Assignment Agreement. In connection with the foregoing, it is understood that the Custodian on behalf of the Trustee shall have no duty to discover any such defects except in the course of performing its review of the Mortgage Files to the extent set forth herein. Except with respect to any Mortgage Loan for which MERS is identified on the Mortgage, the Trustee shall enforce the obligations of the Originator under the Master Agreement to cause the Assignments which were delivered in blank to be completed and to record all Assignments referred to in Section 2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv) hereof. The Trustee shall enforce the obligations of the Originator under the Master Agreement to deliver such assignments for recording within 180 days of the Closing Date. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Trustee shall enforce the obligations of the Originator under the Assignment Agreement to promptly have a substitute Assignment prepared or have such defect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. 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 (except with respect to any Mortgage Loan located in Maryland) unless the Trustee (or the Custodian on behalf of the Trustee) and the Depositor receive notice that such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided, however, each Assignment, except with respect to any Mortgage Loan for which MERS is identified on the Mortgage, 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 a Servicer Event of Termination, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Originator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof, (v) upon receipt of notice from the Servicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, (vi) upon receipt of notice from the Servicer, any Mortgage Loan that is 90 days or more Delinquent and such recordation would be necessary to facilitate conversion of the Mortgaged Property in accordance with Section 3.16 and (vii) reasonable direction by the NIMS Insurer. In the event of (i) through (vii) set forth in the immediately preceding sentence, the Trustee shall enforce the obligations of the Originator to deliver such Assignments for recording as provided above, promptly and in any event within 30 days following receipt of notice by the Originator. Notwithstanding the foregoing, if the Originator fails to pay the cost of recording the Assignments, such expense will be paid by the Trustee (if it reasonably believes it will be reimbursed) and the Trustee shall be reimbursed for such expenses by the Trust. The Servicer shall forward to the Custodian original documents evidencing an assumption, modification, consolidation or extension of any Mortgage Loan entered into in accordance with this Agreement within two weeks of their execution; provided, however, that the Servicer shall provide the Custodian with a certified true copy of any such document submitted for recordation within two weeks of its execution, and shall cause provide the same to be recorded original of any document submitted for recordation or filed, at the Company's expense, in a copy of such document certified by the appropriate public recording office for real property records or UCC financing statements, except that the Company need not cause to be so completed a true and recorded any assignment complete copy of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws original within 365 days of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loanits submission for recordation. In the event that the Company fails or refuses Servicer cannot provide a copy of such document certified by the public recording office within such 365 day period, the Servicer shall deliver to the Custodian, within such 365 day period, an Officers’ Certificate of the Servicer which shall (A) identify the recorded document, (B) state that the recorded document has not been delivered to the Custodian due solely to a delay caused by the public recording office, (C) state the amount of time generally required by the applicable recording office to record or file and return a document submitted for recordation, if known and (D) specify the assignment date the applicable recorded document is expected to be delivered to the Custodian, and, upon receipt of Mortgages or UCC-3 financing statement a copy of such document certified by the public recording office, the Servicer shall immediately deliver such document to the Custodian. In the event the appropriate public recording office will not certify as to the accuracy of such document, the Servicer shall deliver a copy of such document certified by an officer of the Servicer to be a true and complete copy of the original to the Custodian. The parties hereto understand and agree that it is not intended that any Mortgage Loan be included in the circumstances provided aboveTrust that is a high-cost home loan as defined by the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws. The Depositor hereby directs the Trustee to execute, deliver and perform its obligations under the Basis Risk Cap Agreement, the Interest Rate Swap Agreement (in its capacity as Supplemental Interest Trust Trustee) and the Interest Rate Cap Contract (in its capacity as Cap Trustee). The Depositor, the Servicer and the Holders of the Floating Rate Certificates by their acceptance of such Certificates acknowledge and agree that the Trustee shall record execute, deliver and perform its obligations under the Basis Risk Cap Agreement, the Interest Rate Swap Agreement and the Interest Rate Cap Contract and shall do so solely in its capacity as Trustee, Supplemental Interest Trust Trustee, or cause Cap Trustee, as the case may be, and not in its individual capacity. Every provision of this Agreement relating to be recorded the conduct or filed such assignment affecting the liability of or UCC-3 financing statement at affording protection to the expense Trustee shall apply to the Trustee’s execution of the Company. In connection with any such recording or filingBasis Risk Cap Agreement, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding Interest Rate Swap Agreement and the foregoingInterest Rate Cap Contract, at any time and the Company may record or file, or cause to be recorded or filed, the assignments performance of Mortgages or UCC-3 financing statement at the expense its duties and satisfaction of the Companyits obligations thereunder.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2006-3), Pooling and Servicing Agreement (Fremont Home Loan Trust 2006-3)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor after the Cut-Off Date with respect to the Mortgage Loans. In exchange for such transfer and assignment, the Depositor shall receive the Certificates. The Depositor hereby directs the Securities Administrator to execute, not in its individual capacity, but solely as Securities Administrator on behalf of the Trust, and deliver the Yield Maintenance Agreement. Notwithstanding anything provided herein to the contrary, each of the parties hereto agrees and acknowledges that, notwithstanding the transfer, conveyance and assignment of the Mortgage Loans from the Depositor to the Trustee pursuant to this Agreement, the Servicing Rights Owner remains the sole and exclusive owner of the related Servicing Rights with respect to the Mortgage Loans. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreement to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under each Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of Mortgage Loan documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, (i) the Company does hereby deliver to Depositor directs the Trustee to appoint Deutsche Bank National Trust Company, as Custodian, and (or ii) the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the following form: “Pay to the order of Deutsche Bank National Trust Company, including all intervening endorsements showing as Trustee for HarborView Mortgage Loan Trust 2005-11, Mortgage Loan Pass-Through Certificates, Series 2005-11, without recourse”, or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a complete chain copy of endorsement from the originator to the Companyrelated Mortgage Note; provided, however, that if such substitutions of Lost Note Affidavits for original Mortgage Note Notes may occur only with respect to Mortgage Loans the aggregate Cut-Off Date Principal Balance of which is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly less than or equal to 2% of the Company or may show a complete chain of endorsement from the named payee to the CompanyCut-Off Date Aggregate Principal Balance;
(ii) Any assumption except as provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name case of each MERS or its designeeMortgage Loan, an assignment in recordable form (which may be included in a blanket assignment or assignments) the original Mortgage, noting the presence of the MIN for that Mortgage to Loan and either language indicating that the Trustee; and
(2) Each Cooperative Mortgage Loan (other than is a Designated MOM Loan if the Mortgage Loan is a MOM Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that or if such Mortgage Note Loan was not a MOM Loan at origination, the original Mortgage and the assignment to MERS, in each case 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, together with an Officer’s Certificate of the Seller certifying that the copy of such Mortgage delivered to the Trustee (or its Custodian) is a Confirmatory true copy and that the original of such Mortgage Note, such Confirmatory Mortgage Note may be payable directly has been forwarded to the Company or may show public recording office, or, in the case of a complete chain Mortgage that has been lost, a copy thereof (certified as provided for under the laws of endorsement from the named payee appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Company;
(ii) A counterpart of the Proprietary Lease Trustee and the Assignment of Proprietary Lease executed Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in blank or to the originator of the Cooperative Mortgage Loan;
(iii) The related Cooperative Stock Certificatethe original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an undated stock power Officer’s Certificate of the Seller, title company, escrow agent or closing attorney certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or other similar instrumentits Custodian) executed in blankon behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office;
(iv) A counterpart in the case of the recognition agreement by the Cooperative each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment of the interests of the mortgagee with respect Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned to the related Cooperative Loan“Deutsche Bank National Trust Company, as Trustee for HarborView Mortgage Loan Trust 2005-11, Mortgage Loan Pass-Through Certificates, Series 2005-11, without recourse;”
(v) The Security Agreementin the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in the case of an intervening Assignment of Mortgage that has been lost, a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee that such original intervening Assignment of Mortgage is not required to enforce the Trustee’s interest in the Mortgage Loans;
(vi) Copies of the original UCC-1 financing statementPrimary Insurance Policy, and any continuation statementsif any, filed by the originator of such Cooperative Loan as secured partyor certificate, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Leaseif any;
(vii) If applicable, copies the original or a certified copy of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of lender’s title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;insurance policy; and
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in Cooperative Loan, the name of MERS or its designee, no Cooperative Loan Documents. In connection with the assignment of any MERS Mortgage Loan, the Mortgage in favor Seller agrees that it will take (or shall cause the Servicer to take), at the expense of the Trustee shall be required to be prepared or delivered; insteadSeller (with the cooperation of the Depositor, the Company shall take all Master Servicer and the Trustee, such actions as are necessary to cause the Trust Fund MERS® System to be shown as indicate that such Mortgage Loans have been assigned by the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the Custodian).
(3case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the HarborView Mortgage Loan Trust 2005-11. With respect to each Designated LoanCooperative Loan the Seller, on behalf of the Company Depositor does hereby deliver to the Trustee the related Cooperative Loan Documents and the Seller will take (or cause the CustodianServicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Master Servicer and the Trustee, such actions as are necessary under applicable law (including but not limited to the relevant UCC) in order to perfect the Designated Loan Closing Documents.
(c) In connection interest of the Trustee in the related Mortgaged Property. Assignments of each Mortgage with respect to each Mortgage Loan transferred that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and assigned not at the expense of the Trust or the Trustee) acceptable to the Trustee, each Rating Agency and the Company Master Servicer, recording in such states is not required to protect the Trustee’s interest in the related Mortgage Loans; provided, further, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall deliver to be submitted for recording by the Trustee Seller (or the Custodian) Seller will cause the following documents or instruments as promptly as practicableServicer to submit each such assignment for recording), but in any event within 30 days, after receipt by at the Company of all such documents cost and instruments for all expense of the outstanding Mortgage Loans:
Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Master Servicer and the Trustee (or the Custodian on behalf of the Trustee), in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Mortgage Loan that has been assigned is not a MERS Mortgage Loan. The Trustee agrees to execute and deliver to the CompanyDepositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note for each Mortgage Loan (with any exceptions noted), substantially in the related filed intervening UCC-3 financing statements (form attached as Exhibit G-1 hereto. If the original lender’s title insurance policy, or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(x) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) Trustee, promptly upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge receipt thereof, any other documents constituting a part of a Trigger EventMortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of For Mortgage Loans which (if any) that have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the CompanyClosing Date, in lieu of delivering the above documents documents, the Master Servicer shall deliver to the Trustee, or to the Custodian on behalf of the Trustee, prior to the first Distribution Date, an Officer’s Certificate, based on information provided to the Master Servicer from the Servicer, which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account have been so deposited. All original documents that are not delivered to the Trustee on behalf of the Trust shall be held by the Master Servicer or the Servicer in trust for the Trustee, for the benefit of the Trust and the Certificateholders. The Depositor herewith delivers to the Trustee a certification of a Servicing Officer an executed copy of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyPurchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement, Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2005-11)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;; and
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an An assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a . With respect to each Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company does hereby deliver to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee)Designated Loan Closing Documents. Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, within 45 days of the Closing Date the Company does hereby shall deliver to the Trustee either (or the Custodiana) the documents referred to in clauses (i) and (ii) of the second preceding paragraph, provided that if the Company cannot locate such documents in the form initially executed by the Mortgagor and the obligor under any assumption and modification agreement, then it shall use reasonable efforts to obtain, and may deliver, new documents executed by such parties evidencing their obligations under the initial documents or (b) an Opinion of Counsel satisfactory to the Trustee from counsel admitted to practice in the jurisdiction in which the related Mortgaged Property is located to the effect that the absence of the original Mortgage Note or assumption and modification agreement, as the case may be, will not preclude the Company as servicer from initiating or prosecuting to completion any foreclosure proceeding with respect to such Mortgaged Property. If such documents are not so delivered within 45 days of the Closing Date, the Company will use its best reasonable efforts (and the Trustee will have no obligation to inquire as to such efforts) to substitute another Mortgage Loan for such Designated Loan Closing Documents.
(c) on the next succeeding Distribution Date pursuant to Section 2.03(b). If the Company is unable to effect such substitution, it shall repurchase such Designated Loan on such Distribution Date pursuant to Section 2.03(a). In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1i) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan)thereon;
(2ii) a copy of the title insurance policy (other than with respect to a Cooperative Loan);policy; and
(3iii) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1i) and (3iii) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan)Loans. The Company shall also retain in its files the Primary Insurance Policy evidencing evidence of any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. Pending delivery of the documents referred to in the second preceding sentence, such evidence of primary mortgage insurance shall include a copy of the relevant Primary Insurance Policy. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two second and third preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) . The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filedrecorded, at the Company's expense, in the appropriate public office for real property records or UCC financing statementsrecords, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with the recording of any such recording or filingassignment, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filingrecording. Notwithstanding the foregoing, at any time the Company may record or filerecord, or cause to be recorded or filedrecorded, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc), Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc)
Conveyance of Mortgage Loans. (a) It is the intention of the parties hereto that a common law trust be established pursuant to this Agreement and further such trust be designated as "Banc of America Commercial Mortgage Inc. Commercial Mortgage Pass-Through Certificates, Series 2006-1". Wells Fargo Bank, N.A. is hereby appointed, and does hereby agree to acx, xx Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the exclusive use and benefit of all present and future Certificateholders. It is not intended that this Agreement create a partnership or a joint-stock association.
(b) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-sell, set over and otherwise convey to the Trustee Trustee, in trust, without recourse recourse, for the benefit of the Certificateholders (except and for the benefit of the other parties to this Agreement as provided hereintheir respective interests may appear) and the Serviced Companion Loan Holders all the right, title and interest of the Company in Depositor in, to and to the Mortgage Loans, including all interest and principal received by the Company on or with respect to under (i) the Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files, (ii) the Mortgage Loan Purchase and Sale Agreements and (iii) all other assets included or to be included in the Trust Fund. Such assignment includes (i) the Mortgage Loans that from time to time are subject to this Agreement, all interest accrued on the Mortgage Loans on and after the Cut-off Date and all principal payments received on the Mortgage Loans after the Cut-off Date (other than payments of principal and interest payments due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date, which shall belong and be promptly remitted to the applicable Mortgage Loan Seller). The Company acknowledges it has sold , together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the related Mortgage Loan Seller; (ii) any REO Property acquired in respect of a Mortgage Loan; (iii) such funds or assets that from time to time are deposited into the Certificate Account, the Torre Mayor Loan REMIC Distribution Account, the REMIC I Distribution Account, the REMIC II Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Excess Liquidation Proceeds Account and the REO Account (if established), (iv) in the case of a Mortgage Loan included in a Serviced Whole Loan, all the right, title and interest of the Depositor in the related Intercreditor Agreement, (v) in the case of the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan and the Torre Mayor Pari Passu Note A-2 Mortgage Loan, all the right, title and interest of the Depositor in, to and under the related Intercreditor Agreements, and (vi) in the case of the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan, the allonge thereto. The conveyance of the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan and the Torre Mayor Pari Passu Note A-2 Mortgage Loan and the right to service the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan and the Torre Mayor Pari Passu Note A-2 Mortgage Loan are subject to the terms and conditions of the related Non-Serviced Mortgage Loan Pooling Agreement and the related Intercreditor Agreement. This conveyance is subject to the rights of the Sub-Servicers pursuant to the Sub-Servicing Agreements, which rights are subject in any event to this Agreement. Under United States generally accepted accounting principles, the Depositor shall report: (i) its acquisition of the Mortgage Loans from the Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and Sale Agreements, as a purchase of such Mortgage Loans from the Mortgage Loan Sellers; and (ii) its transfer of the Mortgage Loans to the Trustee Trustee, pursuant to the extent provided above and that retention this Section 2.01(b), as a sale of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the such Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or fileDepositor shall cause all of its records to reflect such acquisitions as purchases and such transfer as a sale (in each case, or cause as opposed to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companya secured loan).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc. Series 2006-1)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee Trustee, in respect of the related Trust Fund, without recourse (except as provided herein) all the right, title and interest of the Company in and to the Pool 1 Mortgage LoansLoans (in the case of the Pool 1 Trust Fund) and the Pool 2 Mortgage Loans (in the case of the Pool 2 Trust Fund), including all interest and principal received by the Company on or with respect to the related Mortgage Loans (other than payments of principal and interest due and payable on the such Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all rightIn addition, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee Trustee, in respect of the related Trust Fund, without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianTrustee, on behalf in respect of the Trustee) related Trust Fund, the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;; and
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an An assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the security interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any continuation statements, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the CompanyCompany (if applicable), evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the security interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the TrusteeTrustee in respect of the related Trust Fund). Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or Trustee, in respect of the Custodian) related Trust Fund, the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1i) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2ii) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3iii) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4iv) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1i) and (3iii) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy Policies evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the CertificatesCertificates of the related Certificate Group. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage Mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
(e) On the Closing Date, the Company shall deposit into the Pool 1 Certificate Account an amount equal to $800.00, as a cash contribution to the REMIC constituted by the Pool 1 Trust Fund, to remain uninvested until, and to be part of the Pool 1 Available Funds on, the first Distribution Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class P Grantor Trust for the benefit of the Class P Certificates. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after the Cut-Off Date. The transfer of principal and interest due and payable on the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on or before, the Certificates from and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title transfer and interest in and to the assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the extent provided above terms and that retention conditions of record title of Mortgages (subject to Section 2.01(d) the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement) is for convenience only and , hereby agrees that such Mortgage Loans remain subject to the Company holds record title solely as custodian for the Trustee for benefit terms of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the related Non-Serviced Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance Loan Intercreditor Agreement and, with respect to a each Serviced Pari Passu Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Loan and the intent of this Agreement. With respect to any Pledged Asset Serviced Companion Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage related Loan pursuant to the Pledged Asset Mortgage Servicing Pair Intercreditor Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee (or the Custodian, on behalf remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee) , the following documents Paying Agent, any Custodian, the Master Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may Special Servicer shall be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) Depositor to comply with the document delivery requirements of the Mortgage to the Trustee; andLoan Purchase Agreements and this Section 2.1(b).
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(ic) The original Mortgage Noteapplicable Seller shall, endorsed without recourse in blank by at the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, and any continuation statements, filed by the originator expense of such Cooperative Loan Seller as secured partyto each of its respective Mortgage Loans, each with evidence of recording promptly (and in any event within 45 days following the receipt thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent cause to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except submitted for recording information. With or filing (except with respect to any Mortgage that has been recorded in the name of MERS or its designees), as the case may be, in the appropriate public office for real property records or UCC financing statements, as appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of "Mortgage File;" provided, if the related Mortgage and UCC financing statements have been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall such assignments will be required to be prepared submitted for recording or delivered; filing and instead, the Company shall applicable Seller has agreed in the applicable Mortgage Loan Purchase Agreement to take all actions as are necessary to cause the Trust Fund Trustee to be shown as as, and the Trustee shall take all actions necessary to confirm that it is shown as, the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. Each such assignment shall reflect that it should be returned by the public recording office to the Trustee following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, and assignment of Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall provide evidence obtain therefrom a certified copy of the recorded original. The applicable Seller shall forward copies thereof to the Trustee (or and the Custodian).
(3) With respect to each Designated LoanSpecial Servicer and, if recorded in the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trusteename of MERS, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder Master Servicer and the Primary Insurance PolicySpecial Servicer, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary within 45 days of the Closing Date. The Company shall promptly furnish to , evidence confirming that the Trustee (or is shown as the Custodian) owner on the documents included in the Document Files (other than record of MERS. If any such documents previously delivered to the Trustee (document or the Custodian) as originals instrument is lost or copies) either (a) upon the written request of the Trustee returned unrecorded or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeunfiled, as the case may be, because of a defect therein, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments applicable Seller shall, pursuant to the Trustee applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall upon receipt thereof cause the same to be duly recorded or filed, at as appropriate. After the Company's expenseapplicable Seller has caused the Trustee to be identified on the records of MERS as the owner of a Mortgage, it shall be the sole responsibility of the Master Servicer to ensure that subsequent relevant events relating to the Mortgage (as, for example, assumptions and partial releases) are promptly and properly registered with MERS throughout the term of the related Mortgage Loan for so long as the Mortgage Loan is an asset of the Trust. The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the Primary Servicing Agreement in favor of the Trustee and the Special Servicer to empower the Trustee and, in the appropriate public office for real property records event of the failure or UCC financing statements, except that incapacity of the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided aboveTrustee, the Trustee shall record or cause Special Servicer, to be recorded or filed such assignment or UCC-3 financing statement submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as set forth in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). The Sellers agree to reasonably cooperate with the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the related Seller's expense, after the periods set forth above; provided, however, the Trustee shall not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the possession of the Depositor or the Sellers that relate to the Mortgage Loans, Serviced Companion Mortgage Loans or B Notes and that are not required to be a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer or the Primary Servicer on its behalf, on or before the date that is 45 days following the Closing Date and shall be held by the Master Servicer or the Primary Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer or the Primary Servicer by the related Seller, the Servicer Mortgage File, will include, to the extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the following items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, the insurance policies or certificates (as applicable), the property inspection reports, any financial statements on the property, any escrow analysis, the tax bills, the Appraisal, the environmental report, the engineering report, the asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies. Delivery of any of the foregoing documents to the Primary Servicer (or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the Depositor's obligations under this Section 2.1(d). None of the Master Servicer, the Special Servicer or the Primary Servicer shall have any liability for the absence of any of the foregoing items from the Servicing Mortgage File if such item was not delivered by the related Seller.
(e) In connection with any such recording or filingthe Depositor's assignment pursuant to Section 2.1(a) above, the Company Depositor shall furnish such documents deliver to the Trustee on or before the Closing Date a copy of a fully executed counterpart of each Mortgage Loan Purchase Agreement, as may be reasonably necessary in full force and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall contain the representations and warranties made by the Sellers with respect to accomplish such recording or filingeach related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the Principal II Loans from Principal II, the Wells Fargo Loans from Wells Fargo, the BSCMI Loans from BSCMI and the XXXX Loans from MSMC. Notwithstanding the foregoing, at any time the Company may record or file, Txx Xxpositor will deliver or cause to be recorded delivered the original Mortgage Notes (or filedlost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of "Mortgage File") relating to the Principal II Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as set forth in -81- the definition of "Mortgage File") relating to the Wells Fargo Loans to the Trustee, endorsed as otherwise provided herein, xx effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of "Mortgage File") relating to the BSCMI Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of "Mortgage File") relating to the MSMC Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording of multiple assignment documents, Principal II, Wells Fargo, BSCMI and MSMC, as applicable, are required under the Mortxxxx Loan Purchase Agreements to deliver Assignments of Mortgages and assignments of Assignments of Leases and assignments of UCC financing statements naming the Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the fact that the assignments shall name the Trustee, on behalf of the Certificateholders, as the assignee, the assignments of Mortgages or UCC-3 financing statement at parties hereto acknowledge and agree that for all purposes the expense Principal II Loans shall be deemed to have been transferred from Principal II to the Depositor, the Wells Fargo Loans shall be deemed to have been transferred from Wells Fxxxx to the Depositor, the BSCMI Loans shall be deemed to have bxxx xransferred from BSCMI to the Depositor and the MSMC Loans shall be deemed to have been transferred from MSMC to the Depositor, and all Mortgage Loans shall be deemed to have been transferred from the Depositor to the Trustee on behalf of the CompanyCertificateholders.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Top24)
Conveyance of Mortgage Loans. (a) Each Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of such Seller in and to the applicable Initial Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of the Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the applicable Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The CompanyMaster Servicer confirms that, on behalf of the Sellers, concurrently with the transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders, without recourse, all right title and interest in the Initial Mortgage Loans. CHL further agrees (x) to cause The Bank of New York to enter into the Swap Contract Administration Agreement as Swap Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate corridor transaction evidenced by the Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Swap Contract Administrator, on the terms and conditions set forth in the Swap Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, each Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of such Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of any related Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date. Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) Each Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in and to the Mortgage LoansCertificateholders, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and to the Mortgage Loans portion of the Trust Fund not otherwise conveyed to the Trustee to the extent provided above and that retention of record title of Mortgages (subject pursuant to Section 2.01(d2.01(a) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanb).
(bd) In connection with such transfer and assignment, On any Business Day during the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank Funding Period designated by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage CHL to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from Sellers, the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease Depositor and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateTrustee shall complete, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security execute and deliver a Subsequent Transfer Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with After the execution and delivery of this such Subsequent Transfer Agreement, due to a delay in connection with recording of on the MortgageSubsequent Transfer Date, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required set aside in the Pre-Funding Account an amount equal to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian)Subsequent Transfer Date Purchase Amount.
(3e) With respect to each Designated Loan, The transfer of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with satisfaction of each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) of the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loansconditions:
(1) the Mortgage with evidence Trustee and the Underwriters will be provided Opinions of recording indicated thereon (other than Counsel addressed to the Rating Agencies as with respect to a Cooperative Loanthe sale of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies with respect to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered as provided in Section 2.01(f);
(2) a copy the execution and delivery of such Subsequent Transfer Agreement or conveyance of the title insurance policy (other than with respect related Subsequent Mortgage Loans does not result in a reduction or withdrawal of any ratings assigned to a Cooperative Loan)the Certificates by the Rating Agencies;
(3) with respect to any Mortgage that has been assigned the Depositor shall deliver to the CompanyTrustee an Officer's Certificate confirming the satisfaction of each of the conditions set forth in this Section 2.01(e) required to be satisfied by such Subsequent Transfer Date;
(4) each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to it under this Agreement, the related recorded intervening assignment or assignments of Mortgageprovided, showing a complete chain of assignment from the originator to the Company (other than however, that with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing breach of a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) representation and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than warranty with respect to a Cooperative LoanSubsequent Mortgage Loan set forth in this clause (4). The Company , the obligation under Section 2.03(e) of this Agreement of the applicable Seller, to cure, repurchase or replace such Subsequent Mortgage Loan shall also retain constitute the sole remedy against such Seller respecting such breach available to Certificateholders, the Depositor or the Trustee;
(5) the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were selected in its files a manner reasonably believed not to be adverse to the Primary Insurance Policy evidencing any primary interests of the Certificateholders;
(6) no Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was 30 or more days delinquent;
(7) following the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer Date, the characteristics of each Loan Group will not vary by more than the amount specified below (other than the percentage of Mortgage Loans secured by Mortgaged Properties located in the State of California, which will not exceed 50% of the Mortgage Pool and the percentage of mortgage insurance relating to loans in the Credit Grade Categories of "C" or below, which will not exceed 10% of the Mortgage Loans during in each Loan Group) from the period when characteristics listed below; provided that for the related insurance is in force. (The copies purpose of making such calculations, the characteristics for any Initial Mortgage Loan made will be taken as of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Initial Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer characteristics for any Subsequent Mortgage Loans will be taken as of the nature set forth in Section 3.09.
(d) The Company shall not be required Subsequent Cut-off Date; Loan Group 1 Permitted Variance Characteristic Value or Range -------------------------------- ----------- ------------------ Average Stated Principal Balance..................... $191,803 10% Weighted Average Mortgage Rate....................... 6.781% 0.10% Weighted Average Original Loan-to-Value Ratio........ 83.34% 3% Weighted Average Remaining Term to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Maturity.......... 357 months 3 months Weighted Average Credit Bureau Risk Score............ 678 points 5 points Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Group 2
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Cwabs Asset Backed Certificates Trust 2005-Ab4)
Conveyance of Mortgage Loans. (a) The CompanyIn consideration of the Trustee's delivery to or upon the order of the Seller of the Certificates in an aggregate amount equal to the Cut-off Date Pool Balance, concurrently with the execution and delivery of this Agreement, Seller does hereby transfer, assign, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company Seller in and to (i)(A) the Cut-off Date Trust Balance of each Mortgage LoansLoan, including any Additional Balance arising during the Managed Amortization Period under each Mortgage Loan subsequent to the related Cut-off Date and assigned and transfered to the Trustee hereunder, all payments of interest and principal thereon, from whatever source derived, which are received by on or with respect to each Mortgage Loan on or after the Company Cut-off Date and are allocable to the Trust Balance (but not including all accrued interest and principal due 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, and all Principal Prepayments received on or before, for Interest Periods prior to the Cut-off Date), (B) the Certificate Account, and (C) the Certificate Insurance Policy, (ii) to the extent of the Trust Balances of the Mortgage Loans and interest accrued thereon, as provided in this Agreement, (A) any Mortgaged Properties converted to ownership through foreclosure or deed in lieu or otherwise, (B) any insurance policies related to the Mortgage Loans, and (C) the related Mortgages, Loan Agreements and other Mortgage File documents for the Mortgage Loans; and (iii) the proceeds of each of the foregoing. The Company Seller and the Trustee acknowledge that the Prior Trusts have rights, interests, power and authority with respect to the Common Mortgage Loans and the related Loan Agreements, Mortgages and other Mortgage File documents to the extent provided in the Prior Trust Pooling and Servicing Agreements. The Servicer acknowledges it has that, pursuant to the terms of the Loan Agreements, amounts received from or on behalf of the Mortgagor of a Common Mortgage Loan which, at the time of receipt, are treated as principal collections pursuant to the related Loan Agreement, will be applied in reduction of the principal balance of such Common Mortgage Loan sold to one or more of the Prior Trusts as provided in the Prior Trust Pooling and Servicing Agreements before such collections may be applied as Principal Collections under this Agreement. The parties hereto intend that the transaction set forth herein be a sale by the Mortgage Loan Seller to the Seller and a sale by the Seller to the Trust of all of their right, title and interest in and to the Mortgage Loans and other property described above. In the event the transaction set forth herein is deemed not to be a sale, the Mortgage Loan Seller and the Seller hereby grant to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership a first priority security interest in all of the Mortgage Loans by Loan Seller's and the Trustee Seller's right, title and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to Mortgage Loans identified on the Additional Collateral supporting any Pledged Asset Mortgage LoanLoan Schedule on the Cut-off Date, (ii) its security interest in and Mortgage Loans added to any Additional Collateralthe Mortgage Loan Schedule from time to time, (iii) its right to receive payments all property included in respect the Trust Fund, (iv) and all proceeds of any Pledged Asset of the foregoing; and this Agreement shall constitute a security agreement under applicable law. In connection with such assignment, transfer and conveyance of the Trust Fund, as promptly as practicable but in no event later than 10 days following the Closing Date, (i) the Mortgage Loan pursuant to Seller will file in the Pledged Asset appropriate office in the State in which the principal place of business of the Mortgage Servicing AgreementLoan Seller is located a UCC-1 financing statement executed by the Mortgage Loan Seller as debtor, naming the Seller as secured party and listing as collateral the Mortgage Loans identified on the Mortgage Loan Schedule and all property constituting the Trust Fund, and (ivii) its rights the Seller will file in the appropriate office in the State in which the principal place of business of the Seller is located a UCC-1 financing statement executed by the Seller as beneficiary under debtor, naming the Surety Bond in respect of any Pledged Asset Trustee as secured party and listing as collateral the Mortgage LoanLoans identified on the Mortgage Loan Schedule and all property constituting the Trust Fund. In addition, connection with respect to any CashSaver Mortgage Loansuch filings, the Company does hereby transfer, assign, set-over Mortgage Loan Seller and otherwise convey the Seller agree that they shall each cause to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in be filed all necessary continuation statements thereof and to any Additional Collateral take or cause to be taken such actions and (iii) its right execute such documents as are necessary to receive payments perfect and protect the Certificateholders' interests in respect of any CashSaver the Mortgage LoanLoans and the proceeds thereof allocable thereto.
(b) In connection with such the foregoing assignment, transfer and assignmentconveyance by the Seller, the Company does hereby deliver to Servicer acknowledges that it is holding as custodian for the Trustee (or the Custodian, on behalf of the Trustee) applicable Prior Trustee the following documents or instruments with respect to:
(1) Each to each Mortgage Loan so assigned and transferred (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full on or after the Cut-off Date and prior to the date of the execution and delivery of this Agreement):
(i) The original Loan Agreement;
(ii) The related Mortgage with evidence of recording indicated thereon; and
(iii) As to each Mortgage Loan With Title Insurance, evidence of such insurance (to the extent such evidence is included in the related Mortgage File). Except as hereinafter provided, the Company, in lieu Servicer shall be entitled to maintain possession of delivering all of the above foregoing documents and instruments and shall not be required to deliver any of them to the Trustee. In the event, herewith delivers however, that possession of any of such documents or instruments is required by any person (including the Trustee) acting as successor servicer pursuant to Section 7.04 in order to carry out the duties of Servicer hereunder, then such successor shall be entitled to request delivery of such documents or instruments by the Servicer and to retain such documents or instruments for as long as necessary for servicing purposes. Any such documents or instruments shall be returned to the Servicer (unless returned to the related Mortgagor in connection with the payment in full of the related Mortgage Loan) when possession thereof is no longer required.
(c) The Servicer further confirms to the Trustee a certification that it has caused the portions of a Servicing Officer its records relating to the Mortgage Loans to be clearly and unambiguously marked to indicate that the Trust Balances of such Mortgage Loans (to the extent provided herein) have been assigned and transferred to the Trustee and constitute part of the nature set forth Trust Fund in Section 3.09accordance with the terms of the trust created hereunder.
(d) The Company shall not be required Servicer's right to record the assignments maintain possession of the Mortgages referred to documents enumerated above shall continue so long as the long term unsecured debt of the Indirect Parent is assigned ratings of at least A- by Standard and Poor's and A3 by Xxxxx'x. At such time as the long term unsecured debt of the Indirect Parent does not satisfy the above referenced criteria, as promptly as practicable but in Section 2.01(b)(1)(iiino event more than 90 days following the happening of such event (or 120 days upon the receipt by the Trustee from the Servicer of a letter from each Rating Agency that such longer period (without taking into account the Certificate Insurance Policy) will not result in a reduction in or file withdrawal of any rating of the UCC-3 Investor Certificates), the Servicer shall at the expense of the Servicer (i) prepare assignments referred to in Section 2.01(b)(2)(ix) recordable form to the Trustee unless of each Mortgage Loan (which may be a blanket assignment) and (ii) deliver the Company or related Mortgage Files to the Trustee obtains actual notice or knowledge to be held by the Trustee in trust, upon the terms herein set forth, for the use and benefit of all present and future Certificateholders and the occurrence of Trustee shall retain possession thereof except to the extent the Servicer requires any Trigger EventMortgage Files for normal servicing as contemplated by Section 3.07; provided, however, that such recording or filing preparation of assignments and delivery of related Mortgage Files shall not be required if in the Company delivers case of any Common Mortgage Loan for which the Servicer has so prepared an assignment and delivered the related Mortgage File to the Trustee a letter from each Rating Agency to related Prior Trustee. In the effect that event the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required Servicer fails to deliver the Document Mortgage Files to the Trustee within such 90 day period or, if applicable, 120 day period, the Trustee shall give written notice pursuant to the Support Agreement to the Indirect Parent of the Servicer's failure to deliver the Mortgage Files. Within 60 days following delivery of the occurrence Mortgage Files to the Trustee, it will review or cause to be reviewed each Mortgage File to ascertain that all required documents set forth in this Section 2.01 have been executed and received, and that such documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule and in so doing the Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such 60 day period the Trustee finds any document constituting a part of a Trigger Event)Mortgage File not to have been executed or received or to be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, the Company Trustee shall be deemed promptly notify the Servicer, which shall have a period of 30 days after such notice within which to have knowledge correct or cure any such defect. Upon the completion of the review by the Trustee of each Mortgage File within such 60 day period and, if necessary, the correction or cure of any defect by the Servicer within such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence30 day period, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of Servicer will submit such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, Mortgage Loans for recording in the appropriate public office offices for real property records within seven (7) days of the completion of such review and necessary correction and instruct the recording offices to return the original recorded assignments to the Trustee. Within 30 days following receipt by the Trustee of the recorded assignment the Trustee shall review or UCC financing statements, except that the Company need not cause to be so completed and recorded reviewed such assignment to confirm the information specified above with respect to the other documents. The Trustee shall notify the Servicer of any defect in such assignment based on such review. The Servicer shall have a period of 30 days following such notice to correct or cure such defect. If the Servicer fails to record an assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided aboveherein provided, the Trustee shall record prepare and file or cause to be recorded or filed such assignment or UCC-3 financing statement prepared and filed, at the expense of the CompanyServicer, such assignments in the appropriate real property or other records and the Servicer hereby appoints the Trustee as its attorney-in-fact with full power and authority acting in its stead for the purpose of such preparation and filing.
(e) On the Closing Date the Seller shall deliver the Certificate Insurance Policy to the Trustee.
(f) Bankers Trust Company of California, N.A., as the Prior Trust Trustee or successor trustee for each of the Prior Trusts, hereby acknowledges that the Mortgage Loan Seller has previously reserved and retained certain rights, interests, power and authority (the "Retained Rights") with respect to the Common Mortgage Loan Interests to the extent of the Mortgage Loan Seller's interest in the Common Mortgage Loan Interests not sold to the Prior Trusts, all as set forth more fully in the Prior Trust Pooling and Servicing Agreements. In connection with any such recording or filing, Without limiting the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding generality of the foregoing, at any time the Company may record or file, or cause to be recorded or filed, Retained Rights include the assignments of Mortgages or UCC-3 financing statement at the expense right of the CompanyMortgage Loan Seller to certain balances arising under the related Common Mortgage Loans, together with payments of principal and interest, from whatever source derived, allocable to such balances, as provided in the Prior Trust Pooling and Servicing Agreements. The Mortgage Loan Seller hereby notifies the Prior Trust Trustees that certain of the Retained Rights are being assigned to the Trustee pursuant to, and to the extent provided in, this Agreement (the "Assignment of Retained Rights").
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;; and
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an An assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a . With respect to each Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company does hereby deliver to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee)Designated Loan Closing Documents. Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, within 45 days of the Closing Date the Company does hereby shall deliver to the Trustee either (or the Custodiana) the documents referred to in clauses (i) and (ii) of the second preceding paragraph, provided that if the Company cannot locate such documents in the form initially executed by the Mortgagor and the obligor under any assumption and modification agreement, then it shall use reasonable efforts to obtain, and may deliver, new documents executed by such parties evidencing their obligations under the initial documents or (b) an Opinion of Counsel satisfactory to the Trustee from counsel admitted to practice in the jurisdiction in which the related Mortgaged Property is located to the effect that the absence of the original Mortgage Note or assumption and modification agreement, as the case may be, will not preclude the Company as servicer from initiating or prosecuting to completion any foreclosure proceeding with respect to such Mortgaged Property. If such documents are not so delivered within 45 days of the Closing Date, the Company will use its best reasonable efforts (and the Trustee will have no obligation to inquire as to such efforts) to substitute another Mortgage Loan for such Designated Loan Closing Documents.
(c) on the next succeeding Distribution Date pursuant to Section 2.03(b). If the Company is unable to effect such substitution, it shall repurchase such Designated Loan on such Distribution Date pursuant to Section 2.03(a). In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1i) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan)thereon;
(2ii) a copy of the title insurance policy (other than with respect to a Cooperative Loan);policy; and
(3iii) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1i) and (3iii) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan)Loans. The Company shall also retain in its files the Primary Insurance Policy evidencing evidence of any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. Pending delivery of the documents referred to in the second preceding sentence, such evidence of primary mortgage insurance shall include a copy of the relevant Primary Insurance Policy. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two second and third preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of 42 delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) . The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filedrecorded, at the Company's expense, in the appropriate public office for real property records or UCC financing statementsrecords, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with the recording of any such recording or filingassignment, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filingrecording. Notwithstanding the foregoing, at any time the Company may record or filerecord, or cause to be recorded or filedrecorded, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey to the Trustee Trustee, on behalf of the Trust, without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest accruing thereon after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) all proceeds of any of the foregoing; (v) the rights of the Depositor under the Mortgage Loan Purchase Agreement, including and (vi) all other assets included or to be included in the Trust Fund; provided, however, so long as the Servicer is an FHA Approved Mortgagee, the Commissioner of HUD shall have no obligation to recognize or deal with any person other than the Servicer with respect to FHA Insurance. Such assignment includes all interest and principal received by due to the Company on Depositor or the Servicer after the Cut-off Date with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date)Loans. The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver to, and deposit with the Trustee) , or its designated agent (the "Custodian"), the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana "Mortgage File") so transferred and assigned:
(i) The the original Mortgage Note including any riders thereto, endorsed either (A) in blank or (B) in the following form: "Pay to the order of U.S. Bank National Association, as Trustee under the Pooling and Servicing Agreement, dated as of June 1, 2003, among Credit-Based Asset Servicing and Securitization LLC, Xxxxxxx Xxxxx Mortgage Investors, Inc., Xxxxxx Loan Servicing LP and U.S. Bank National Association, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2003-CB3, without recourse," or with respect to any lost Mortgage Note, endorsed without recourse in blank by an original Lost Note Affidavit, together with a copy of the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory related Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Noteincluding any riders thereto, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the original recorded power of attorney, if the Mortgage Loans (other than with respect was executed pursuant to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies power of the Mortgageattorney, intervening assignments with evidence of Mortgagerecording thereon or, if anysuch Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, title insurance binder and the Primary Insurance Policyhas been lost or is not otherwise available, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any copy of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes Mortgage or power of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeattorney, as the case may be, certified to be a true and complete copy of the Company original submitted for recording;
(iii) an original Assignment of Mortgage, in form and substance acceptable for recording. The Mortgage shall insert be assigned either (A) in blank or (B) to "U.S. Bank National Association, as Trustee under the recording Pooling and Servicing Agreement, dated as of June 1, 2003, among Credit-Based Asset Servicing and Securitization LLC, Xxxxxxx Xxxxx Mortgage Investors, Inc., Xxxxxx Loan Servicing LP and U.S. Bank National Association, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2003-CB3, without recourse";
(iv) an original or filing information copy of any intervening assignment of Mortgage showing a complete chain of assignments;
(v) the original or a certified copy of lender's title insurance policy except with respect to those Mortgage Loans identified on Exhibit U hereto;
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any;
(vii) for each FHA Loan, the original Mortgage Insurance Certificate; and
(viii) for each VA Loan, the original Loan Guaranty Certificate. The Trustee agrees to execute and deliver (or cause the Custodian to execute and deliver) to the Depositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the assignments form attached as Exhibit F-3 hereto. The Servicer shall within 90 days following the Closing Date, with respect to each Mortgage Loan that is subject to the provisions of the Mortgages Homeownership and Equity Protection Act of 1994, place or UCC-3 assignments cause to be placed a legend on the original Mortgage Note indicating the satisfaction of the provisions of such Act and the regulations issued thereunder, to the Trustee effect that the Mortgage Loan is subject to special truth in lending rules. The Servicer shall promptly (and shall in no event later than thirty days following the Closing Date) submit or cause the same to be recorded or filedsubmitted for recording, at the CompanyServicer's expenseexpense and at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such Assignment is lost or UCC financing statementsreturned unrecorded because of a defect therein, except the Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. If any of the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee or the Custodian no later than the Closing Date, of a copy of each such document certified by the Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Company Seller, delivery to the Trustee or the Custodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. The Seller shall deliver or cause to be delivered to the Trustee or the Custodian promptly upon receipt thereof any other 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. Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Seller shall have 120 days to cure such defect or 150 days following the Closing Date, in the case of missing Mortgages or Assignments or deliver such missing document to the Trustee or the Custodian. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03. The Seller shall cause the Assignments of Mortgage which were delivered in blank to be completed and shall cause all Assignments referred to in Section 2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv) hereof to be recorded; provided, however, the Seller need not cause to be so completed and recorded any assignment of mortgage Assignment which relates to a Mortgage Loan secured by property in a any jurisdiction under the laws of which, on the basis of as evidenced by an Opinion of Counsel reasonably satisfactory delivered by the Seller to the Trustee and satisfactory to each the Rating Agency (as evidenced in writing)Agencies, the recordation of such assignment is not necessary to protect the Trustee against discharge Trustee's interest, on behalf of such Mortgage Loan by the Company or any valid assertion that any Person other than Trust, in the Trustee has title to or any rights in such related Mortgage Loan. The Seller shall be required to deliver such assignments for recording within 30 days of the Closing Date. The Seller shall furnish the Trustee, or its designated agent, with a copy of each assignment of Mortgage submitted for recording. In the event that the Company fails any such Assignment is lost or refuses to record or file the assignment returned unrecorded because of Mortgages or UCC-3 financing statement in the circumstances provided abovea defect therein, the Trustee Seller shall record promptly have a substitute Assignment prepared or have such defect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. In the event that any Mortgage Note is endorsed in blank as of the Closing Date, promptly following the Closing Date the Seller shall cause to be recorded or filed completed such assignment or UCC-3 financing statement at endorsements "Pay to the expense order of U.S. Bank National Association, as Trustee under the Pooling and Servicing Agreement, dated as of June 1, 2003, among Credit-Based Asset Servicing and Securitization LLC, Xxxxxxx Xxxxx Mortgage Investors, Inc., Xxxxxx Loan Servicing LP and U.S. Bank National Association, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2003-CB3, without recourse." The Depositor herewith delivers to the Trustee executed copies of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyMortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Conveyance of Mortgage Loans. (a) The CompanySeller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of the Seller in and to the Initial Mortgage Loans, including all interest and principal received and receivable by the Seller on or with respect to the Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Seller as an Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The Seller confirms that, concurrently with the transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders, without recourse, all right title and interest in the Initial Mortgage Loans and causes the Seller to issue the Seller Loss Coverage Obligation in favor of the Trust pursuant to Section 2.08 hereof. The Seller further agrees to assign all of its right, title and interest in and to the interest rate cap transaction evidenced by the Amended Confirmation And Agreement to, and to cause all of its obligations in respect of such transaction to be assumed by, the Trustee on behalf of the Trust Fund, on the terms and conditions set forth in the Cap Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, the Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of the Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by the Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Seller as a Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date.
II-1 Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) The Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in and to the Mortgage LoansCertificateholders, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and the portion of the Trust Fund not otherwise conveyed to the Mortgage Loans Trust Fund pursuant to Sections 2.01(a) or (b).
(d) On (x) August 31, 2001 and (y) on any Business Day during the Funding Period designated to the Trustee by the Seller, the Seller, the Depositor and the Trustee shall complete, execute and deliver a Subsequent Transfer Agreement. After the execution and delivery of such Subsequent Transfer Agreement, on the Subsequent Transfer Date, the Trustee shall set aside in the Pre-Funding Account an amount equal to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanrelated Subsequent Transfer Date Aggregate Purchase Amount.
(be) In connection with such The transfer and assignment, of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian, on behalf satisfaction of each of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assignedconditions:
(i) The original the Trustee will be provided Opinions of Counsel addressed to the Rating Agencies as with respect to the sale of the Subsequent Mortgage NoteLoans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies with respect to the sale of the Initial Mortgage Loans on the Closing Date), endorsed without recourse to be delivered as provided in blank Section 2.01(f);
(ii) the execution and delivery of such Subsequent Transfer Agreement or conveyance of the related Subsequent Mortgage Loans does not result in a reduction or withdrawal of the any ratings assigned to the Certificates by the Company, including all intervening endorsements showing a complete chain of endorsement from Ratings Agencies;
(iii) the originator Depositor shall deliver to the Company; Trustee an Officer's Certificate confirming the satisfaction of each of the conditions set forth in this Section 2.01(e) required to be satisfied by such Subsequent Transfer Date;
(iv) each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to it under this Agreement, provided, however, that if with respect to a breach of a representation and warranty with respect to a Subsequent Mortgage Loan set forth in this clause (iv), the obligation under Section 2.03(e) of this Agreement of the Seller to cure, repurchase or replace such Subsequent Mortgage Note is a Confirmatory Mortgage NoteLoan shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, such Confirmatory Mortgage Note may be payable directly to the Company Depositor or may show a complete chain of endorsement from the named payee to the Company;Trustee.
(iiv) Any assumption and modification agreement;
(iii) Except for any the Subsequent Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included Loans conveyed on such Subsequent Transfer Date were selected in a blanket assignment or assignments) of the Mortgage manner reasonably believed not to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator be adverse to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security AgreementCertificateholders;
(vi) Copies of the original UCC-1 financing statement, and any continuation statements, filed by the originator of no Subsequent Mortgage Loan conveyed on such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary LeaseSubsequent Transfer Date was 60 or more days delinquent;
(vii) If applicable, copies following the conveyance of the UCC-3 assignments of Subsequent Mortgage Loans on such Subsequent Transfer Date, the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment characteristics of the Mortgage in recordable form canLoans will not vary by more than 10% from the characteristics listed below; provided that for the purpose of making such calculations, the characteristics for any Initial Mortgage Loan made will be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording taken as of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Initial Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer characteristics for any Subsequent Mortgage Loans will be taken as of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Subsequent Cut-off Date:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Cwabs Inc Asset Backed Certificates Series 2001-Bc3)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all rightIn addition, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an An assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1i) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2ii) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3iii) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4iv) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1i) and (3iii) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing evidence of any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. Such evidence shall consist, for each Mortgage Loan, of a certificate of private mortgage insurance relating to such Mortgage Loan or an electronic screen print setting forth the information contained in such certificate of private mortgage insurance, including, without limitation, information relating to the name of the mortgage insurance carrier, the certificate number, the loan amount, the property address, the effective date of coverage, the amount of coverage and the expiration date of the policy. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two second and third preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class S Grantor Trust for the benefit of the Class S Certificates. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after the Cut-Off Date. The transfer of principal and interest due and payable on the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on or before, the Certificates from and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title transfer and interest in and to the assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the extent provided above terms and that retention conditions of record title of Mortgages (subject to Section 2.01(d) the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement) is for convenience only and , hereby agrees that such Mortgage Loans remain subject to the Company holds record title solely as custodian for the Trustee for benefit terms of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the related Non-Serviced Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance Loan Intercreditor Agreement and, with respect to a each Serviced Pari Passu Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Loan and the intent of this Agreement. With respect to any Pledged Asset Serviced Companion Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage related Loan pursuant to the Pledged Asset Mortgage Servicing Pair Intercreditor Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee (or the Custodian, on behalf remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee) , the following documents Paying Agent, any Custodian, the Master Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may Special Servicer shall be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) Depositor to comply with the document delivery requirements of the Mortgage to the Trustee; andLoan Purchase Agreements and this Section 2.1(b).
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(ic) The original Mortgage Noteapplicable Seller shall, endorsed without recourse in blank by at the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, and any continuation statements, filed by the originator expense of such Cooperative Loan Seller as secured partyto each of its respective Mortgage Loans, each with evidence of recording promptly (and in any event within 45 days following the receipt thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent cause to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except submitted for recording information. With or filing (except with respect to any Mortgage that has been recorded in the name of MERS or its designees), as the case may be, in the appropriate public office for real property records or UCC financing statements, as appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of "Mortgage File;" provided, if the related Mortgage and UCC financing statements have been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall such assignments will be required to be prepared submitted for recording or delivered; filing and instead, the Company shall applicable Seller has agreed in the applicable Mortgage Loan Purchase Agreement to take all actions as are necessary to cause the Trust Fund Trustee to be shown as as, and the Trustee shall take all actions necessary to confirm that it is shown as, the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. Each such assignment shall reflect that it should be returned by the public recording office to the Trustee following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, and assignment of Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall provide evidence obtain therefrom a certified copy of the recorded original. The applicable Seller shall forward copies thereof to the Trustee (or and the Custodian).
(3) With respect to each Designated LoanSpecial Servicer and, if recorded in the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trusteename of MERS, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder Master Servicer and the Primary Insurance PolicySpecial Servicer, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary within 45 days of the Closing Date. The Company shall promptly furnish to , evidence confirming that the Trustee (or is shown as the Custodian) owner on the documents included in the Document Files (other than record of MERS. If any such documents previously delivered to the Trustee (document or the Custodian) as originals instrument is lost or copies) either (a) upon the written request of the Trustee returned unrecorded or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeunfiled, as the case may be, because of a defect therein, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments applicable Seller shall, pursuant to the Trustee applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall upon receipt thereof cause the same to be duly recorded or filed, at as appropriate. After the Company's expenseapplicable Seller has caused the Trustee to be identified on the records of MERS as the owner of a Mortgage, it shall be the sole responsibility of the Master Servicer to ensure that subsequent relevant events relating to the Mortgage (as, for example, assumptions and partial releases) are promptly and properly registered with MERS throughout the term of the related Mortgage Loan for so long as the Mortgage Loan is an asset of the Trust. The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the applicable Primary Servicing Agreement in favor of the Trustee and the Special Servicer to empower the Trustee and, in the appropriate public office for real property records event of the failure or UCC financing statements, except that incapacity of the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided aboveTrustee, the Trustee shall record or cause Special Servicer, to be recorded or filed such assignment or UCC-3 financing statement submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as described in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). In The Sellers agree to reasonably cooperate with the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such recording parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or filingunder authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the related Seller's expense, after the periods set forth above; provided, however, the Company Trustee shall furnish not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the possession of the Depositor or the Sellers that relate to the Mortgage Loans, Serviced Companion Mortgage Loans or B Notes and that are not required to be a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer or the applicable Primary Servicer on its behalf, on or before the date that is 45 days following the Closing Date and shall be held by the Master Servicer or the applicable Primary Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer or the applicable Primary Servicer by the related Seller, the Servicer Mortgage File, will include, to the extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the following items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, the insurance policies or certificates (as may be reasonably necessary to accomplish such recording or filingapplicable), the property inspection reports, any financial statements on the property, any escrow analysis, the tax bills, the Appraisal, the environmental report, the engineering report, the asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies. Notwithstanding the foregoing, at no Seller shall be required to deliver any time draft documents, or any attorney-client communications that are privileged communications or constitute legal or other due diligence analyses, or internal communications of the Company may record Seller or fileits affiliates, or credit underwriting or other analyses or data. Delivery of any of the foregoing documents to the applicable Primary Servicer (or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the Depositor's obligations under this Section 2.1(d). None of the Master Servicer, the Special Servicer or the applicable Primary Servicer shall have any liability for the absence of any of the foregoing items from the Servicing Mortgage File if such item was not delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to Section 2.1(a) above, the Depositor shall deliver to the Trustee on or before the Closing Date a copy of a fully executed counterpart of each Mortgage Loan Purchase Agreement, as in full force and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall contain the representations and warranties made by the Sellers with respect to each related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the Principal Loans from Principal, the UCMFI Loans from UCMFI, the LaSalle Loans from LaSalle and the MSMC Loans from MSMC. The Depositor will deliver or cause to be recorded delivered the original Mortgage Notes (or filedlost note affidavits with copies of the related Mortgage Notes, as described in the definition of "Mortgage File") relating to the Principal Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as described in the definition of "Mortgage File") relating to the UCMFI Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as described in the definition of "Mortgage File") relating to the LaSalle Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as described in the definition of "Mortgage File") relating to the MSMC Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording of multiple assignment documents, Principal, LaSalle, UCMFI and MSMC, as applicable, are required under the Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages and assignments of Assignments of Leases and assignments of UCC financing statements naming the Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the fact that the assignments shall name the Trustee, on behalf of the Certificateholders, as the assignee, the assignments of Mortgages or UCC-3 financing statement at parties hereto acknowledge and agree that for all purposes the expense Principal Loans shall be deemed to have been transferred from Principal to the Depositor, the LaSalle Loans shall be deemed to have been transferred from LaSalle to the Depositor, the UCMFI Loans shall be deemed to have been transferred from UCMFI to the Depositor and the MSMC Loans shall be deemed to have been transferred from MSMC to the Depositor, and all Mortgage Loans shall be deemed to have been transferred from the Depositor to the Trustee on behalf of the CompanyCertificateholders.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005-Hq7)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfersells, assigntransfers, set-assigns, sets over and otherwise convey conveys to the Trustee in trust for the benefit of the Certificateholders, without recourse (except as provided herein) recourse, all the right, title and interest of the Company Depositor (which does not include servicing rights) in and to the each Mortgage LoansLoan, including all interest and principal received by the Company or receivable on or with respect to such Mortgage Loans after the Cut-off Date and all interest and principal payments on the Mortgage Loans (other than received prior to the Cut-off Date in respect of installments of interest and principal due thereafter, but not including payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off DateDate (other than the rights of the Servicer to service the Mortgage Loans in accordance with this Agreement). In addition, on or prior to the Closing Date, the Depositor shall (i) cause the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee, (ii) cause the Mortgage Pool Insurer to deliver the Pool Insurance Policy to the Trustee and (iii) cause the Special Hazard Insurer to deliver the Special Hazard Insurance Policy to the Trustee.
(b) In connection with the transfer and assignment set forth in clause (a) above, the Depositor has delivered or caused to be delivered to the Trustee or its designated agent, the Custodian, for the benefit of the Certificateholders, the documents and instruments with respect to each Mortgage Loan as assigned:
(A) the original Mortgage Note of the Mortgagor in the name of the Trustee or endorsed "Pay to the order of ________________ without recourse" and signed in the name of the last named endorsee by an authorized officer, together with all intervening endorsements showing a complete chain of endorsements from the originator of the related Mortgage Loan to the last endorsee or (B) with respect to any Lost Mortgage Note (as such term is defined in the Pooling and Servicing Agreement), a lost note affidavit stating that the original Mortgage Note was lost or destroyed, together with a copy of such Mortgage Note;
(ii) the original Mortgage bearing evidence that such instruments have been recorded in the appropriate jurisdiction where the Mortgaged Property is located as determined by DLJMC (or, in lieu of the original of the Mortgage or the assignment thereof, a duplicate or conformed copy of the Mortgage or the instrument of assignment, if any, together with a certificate of receipt from the Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy or copies represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same;
(iii) the original Assignment of Mortgage, in blank, which assignment appears to be in form and substance acceptable for recording and, in the event that the related Seller acquired the Mortgage Loan in a merger, the assignment must be by "[Seller], successor by merger to [name of predecessor]", and in the event that the Mortgage Loan was acquired or originated by the related Seller while doing business under another name, the assignment must be by "[Seller], formerly known as [previous name]";
(iv) the original of any intervening assignment of the Mortgage not included in (iii) above, including any warehousing assignment, with evidence of recording thereon (or, in lieu of the original of any such intervening assignment, a duplicate or conformed copy of such intervening assignment together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy or copies represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same;
(v) an original of any related security agreement (if such item is a document separate from the Mortgage) and the originals of any intervening assignments thereof showing a complete chain of assignment from the originator of the related Mortgage Loan to the last assignee;
(vi) an original assignment of any related security agreement (if such item is a document separate from the Mortgage) executed by the last assignee in blank;
(vii) the originals of any assumption, modification, extension or guaranty agreement with evidence of recording thereon, if applicable (or, in lieu of the original of any such agreement, a duplicate or conformed copy of such agreement together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy(ies) represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located), or a certification or receipt of the recording authority evidencing the same; and
(viii) if the Mortgage Note or Mortgage or any other document or instrument relating to the Mortgage Loan has been signed by a person on behalf of the Mortgagor, the original power of attorney or other instrument that authorized and empowered such person to sign bearing evidence that such instrument has been recorded, if so required, in the appropriate jurisdiction where the Mortgaged Property is located as determined by DLJMC (or, in lieu thereof, a duplicate or conformed copy of such instrument, together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy(ies) represent true and complete copy(ies)of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same. In the event the Seller delivers to the Trustee certified copies of any document or instrument set forth in 2.01(b) because of a delay caused by the public recording office in returning any recorded document, the Seller shall deliver to the Trustee, within 60 days of the Closing Date, an Officer's Certificate which shall (i) identify the recorded document, (ii) state that the recorded document has not been delivered to the Trustee due solely to a delay caused by the public recording office, and (iii) state the amount of time generally required by the applicable recording office to record and return a document submitted for recordation. In the event that in connection with any Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim recorded assignments or (c) the lender's title policy (together with all riders thereto) satisfying the requirements set forth above, concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office in the case of clause (a) or (b) above, or because the title policy has not been delivered to the Seller or the Depositor by the applicable title insurer in the case of clause (c) above, the Depositor shall promptly deliver to the Trustee, in the case of clause (a) or (b) above, such original Mortgage or such interim assignment, as the case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office, or a copy thereof, certified, if appropriate, by the relevant recording office. As promptly as practicable subsequent to such transfer and assignment, and in any event, within thirty (30) days thereafter, the Trustee shall or shall cause the Custodian to (i) affix the Trustee's name to each Assignment of Mortgage, as the assignee thereof, (ii) cause such assignment to be in proper form for recording in the appropriate public office for real property records within thirty (30) days after receipt thereof and (iii) cause to be delivered for recording in the appropriate public office for real property records the assignments of the Mortgages to the Trustee, except that, with respect to any assignment of a Mortgage as to which the Trustee or the Custodian as applicable has not received the information required to prepare such assignment in recordable form, the Trustee's obligation to do so and to deliver the same for such recording shall be as soon as practicable after receipt of such information and in any event within thirty (30) days after the receipt thereof, and the Trustee or the Custodian as applicable need not cause to be recorded (a) any assignment which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller (at the Seller's expense) to the Trustee within 20 days of the Closing Date, acceptable to the Rating Agencies, the recordation of such assignment is not necessary to protect the Trustee's and the Certificateholders' interest in the related 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 by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Company acknowledges Depositor further agrees that it has sold will not, and will not permit the Servicer to, and the Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(c) The Trustee is authorized to appoint any bank or trust company approved by the Depositor as Custodian of the documents or instruments referred to in this Section 2.01, and to enter into a Custodial Agreement for such purpose and any documents delivered thereunder shall be delivered to the Custodian and any Officer's Certificates delivered with respect thereto shall be delivered to the Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section 2.01 be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee. It is, further, not the intention of the parties to this Agreement that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties to this Agreement, the Mortgage Loans are held to be the property of the Depositor, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans then (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; (b) the conveyance provided for in this Section 2.01 shall be deemed to be a grant by the Depositor to the Trustee for the benefit of the Certificateholders of a security interest in all of the Depositor's right, title and interest in and to the Mortgage Loans and all amounts payable to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership holders of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms thereof and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf all proceeds of the Trustee) conversion, voluntary or involuntary, of the following documents foregoing into cash, instruments, securities or instruments with respect to:
(1) Each Mortgage Loan (other property, including without limitation all amounts, other than any Cooperative Loan investment earnings, from time to time held or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded invested in the name Certificate Account, whether in the form of MERS or its designeecash, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Noteinstruments, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (securities or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trusteeproperty; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt possession by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any Custodian of such events shall give the items of property and such other party (and the Custodianitems of property as constitute instruments, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event)money, the Company negotiable documents or chattel paper shall be deemed to have knowledge be "in possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the New York Uniform Commercial Code; 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 benefit of the Certificateholders for the purpose of perfecting such security interest under applicable law (except that nothing in this clause (e) shall cause any person to be deemed to be an agent of the Trustee for any purpose other than for perfection of such downgrading referred to in the definition of Trigger Event ifsecurity interests unless, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent and then only to the Company's delivery or receipt of such written noticeextent, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to expressly appointed and authorized by the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing). The Depositor and the Trustee, recordation of upon directions from the Depositor, shall, to the extent consistent with this Agreement, take such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments term of Mortgages or UCC-3 financing statement at the expense of the Companythis Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Conveyance of Mortgage Loans. (a) The CompanySeller, concurrently with the execution and delivery of this Agreement, does hereby establish the Trust, appoint the Trustee as trustee of the Trust and transfer, assign, set-sell, set over and otherwise convey to the Trustee Trust without recourse (except as provided hereinsubject to Sections 2.02 and 2.04) (1) all the of its right, title and interest in and to each Mortgage Loan, including the related Cut-Off Date Principal Balance, all interest accruing thereon on and after the Cut-Off Date and all collections in respect of interest and principal received on and after the Cut-Off Date (exclusive of (A) payments in respect of interest accrued on the Mortgage Loans during May 2000 due on or after the Cut-Off Date and permitted to be withdrawn from the Collection Account pursuant to Section 3.03(v)(b) and (B) payments in respect of interest on the Mortgage Loans due prior to the Cut-Off Date and received thereafter and permitted to be withdrawn from the Collection Account pursuant to Section 3.03(v)(b)); (2) property which secured such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (3) its interest in any insurance policies in respect of the Company Mortgage Loans; (4) such amounts as may be deposited into and held by the Trustee in the Pre-Funding Accounts and the Capitalized Interest Accounts; and (5) all proceeds of any of the foregoing. In addition, on or prior to the Closing Date, the Seller shall cause the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee. The foregoing sale, transfer, assignment, set over and conveyance does not and is not intended to result in a creation or an assumption by the Trustee of any obligation of the Seller or any other Person in connection with the Mortgage Loans or any agreement or instrument relating thereto except as specifically set forth herein. In connection with such transfer, assignment, sale and conveyance by the Seller, the Seller shall deliver to, and deposit with, the Document Custodian (in the case of paragraphs (ii), (iv), (v) and (vi) below) or the Trustee or its designee (in the case of paragraphs (i) and (iii) below), on or before the Closing Date (except that in the case of paragraph (iii) such documents need not be delivered to the Trustee for up to 90 days from the Closing Date), the following documents or instruments with respect to each Mortgage Loan (the "Related Documents") and the Initial Mortgage Loan Schedule in computer readable format:
(i) the original Mortgage Note, endorsed (which endorsement may be by an allonge) without recourse either (A) in blank or (B) to the order of the Trustee, in either case with all intervening endorsements showing a complete chain of title from the originator of such Mortgage Loan to the Seller or in the event the Seller conducts business under any other name, in the form of "The Provident Bank, d/b/a [such other name]";
(ii) the original Mortgage, with evidence of recording thereon, provided that if the original Mortgage has been delivered for recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been returned to the Seller by such recording office, the Seller shall deliver to the Document Custodian a certified true copy of such original Mortgage so certified by the Seller, together with a certificate of the Seller certifying that such original Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or cause to be delivered the original recorded Mortgage to the Document Custodian promptly upon receipt of the original recorded Mortgage;
(iii) the original Assignment of Mortgage, assigned by the Seller either (A) in blank or (B) to the Trustee, which assignment shall be in form and substance acceptable for recording (in the event the Seller conducts business under any name other than The Provident Bank, in the form of "The Provident Bank, d/b/a [such other name]");
(iv) the original attorney's opinion of title or the original policy of title insurance, provided that if any such original policy of title insurance has not yet been received by the Seller, the Seller may have delivered to the Document Custodian a copy of such policy or a title insurance binder or commitment for the issuance of such policy;
(v) originals of all intervening assignments of Mortgage, with evidence of recording thereon, showing a complete chain of title from the originator to the Seller, provided that if any such original intervening assignment of Mortgage has been delivered for recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been returned to the Seller by such recording office, the Seller may have delivered to the Document Custodian a certified true copy of such original assignment of Mortgage so certified by the Seller, together with a certificate of the Seller certifying that such original assignment of Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or cause to be delivered any such original assignments to the Document Custodian promptly upon receipt thereof; and
(vi) originals of all assumption and modification agreements, if any. For so long as an Assignment Event has not occurred, the Document Custodian shall be entitled to maintain possession of each Mortgage File (other than the related Mortgage Note and the Assignment of Mortgage) for each Mortgage Loan. Within 30 days of an Assignment Event, the Seller, at its expense, shall cause the portion of the Mortgage Files held by the Document Custodian to be delivered to the Trustee or its designee. The Seller hereby confirms to the Trustee that as of each Transfer Date, it shall cause the portions of the Electronic Ledger relating to the related Mortgage Loans to be clearly and unambiguously marked to indicate that such Mortgage Loans have been transferred to the Trustee as of such date and constitute part of the Trust in accordance with the terms of the trust created hereunder. The Electronic Ledger shall indicate that the Mortgage Files (other than the Mortgage Notes and the Assignments of Mortgage) are held by the Document Custodian as custodian for the Trustee of the Provident Bank Home Equity Loan Trust 2000-2. Within 30 days of an Assignment Event, the Seller, at its own expense, shall deliver notice of such event to the Trustee, the Rating Agencies and the Certificate Insurer and shall either (i) record the Assignments of Mortgage in favor of the Trustee in the appropriate real property or other records (which may be a blanket assignment if permitted by applicable law) or (ii) deliver to the Trustee, the Rating Agencies and the Certificate Insurer an Opinion of Counsel in form and substance acceptable to the Certificate Insurer to the effect that recording is not required to protect the Trustee's right, title and interest in and to the related Mortgage LoansLoan or, including all interest and principal received by in the Company on or with respect to event a court should recharacterize the conveyance of the Mortgage Loans (other as a loan or a pledge of security for a loan, to perfect a first priority security interest in favor of the Trustee in the related Mortgage Loan. With respect to any Assignment of Mortgage as to which the related recording information is unavailable within 30 days of an Assignment Event, the Seller shall notify the Trustee and such Assignment of Mortgage shall be submitted by the Seller for recording within 30 days after receipt of such information but in no event later than payments one year from the date such Assignment of principal Mortgage is otherwise required to be recorded pursuant to this Section. The Trustee shall be provided a copy of each Assignment of Mortgage submitted for recording and interest due such copy shall be retained by it. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Seller, at its own expense, shall promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and payable on thereafter the Seller shall be required to submit each such Assignment of Mortgage for recording. Any failure of the Seller to comply with this Section shall result in the obligation of the Seller to purchase the related Mortgage Loans on pursuant to the provisions of Section 2.02 or before, and substitute for the related Mortgage Loans pursuant to the provisions of Section 2.06.
(b) The parties hereto intend that the transaction set forth herein be a sale by the Seller to the Trust of all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all Seller's right, title and interest in and to the Mortgage Loans and other property described above. In the event the transaction set forth herein is deemed not to be a sale, the Seller hereby grants to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit Trust a security interest in all of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of Seller's right, title and interest in, to and under the Mortgage Loans by and other property of the Trustee Trust described above; and will not deliver any instrument of satisfaction or conveyance with respect this Agreement shall constitute a security agreement under applicable law. The Seller agrees to a Mortgage or a Mortgage Loanprepare, or convey or purport to convey any interest in a Mortgage Loan, except in accordance execute and file UCC-1 financing statements with the terms Secretary of State in the State of Ohio and the intent of this Agreement. With respect to any Pledged Asset Hamilton County, Ohio Recorder's Office (which shall have been fixxx xx xr before the Closing Date) describing the Mortgage Loan, Loans and naming the Company does hereby transfer, assign, set-over Seller as debtor and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianTrustee, on behalf of the Trust, as secured party, and all necessary continuation statements and any amendments to the UCC-1 financing statements required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal offices of the Seller or as otherwise required by applicable law, as are necessary to perfect and protect the Trustee) 's interest in each Mortgage Loan and the following documents or instruments proceeds thereof. The Seller and the Master Servicer 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, 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. The Trustee shall cooperate with the Seller and Master Servicer with respect to:to such action as requested by such parties or the Certificate Insurer.
(1c) Each The Trustee shall, for the benefit of Certificateholders, within 60 days after the applicable Transfer Date certify to the Seller, the Certificate Insurer and the Master Servicer that all Mortgage Notes have been executed and received, and that such documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule and that the Mortgage Notes have been endorsed as set forth in Section 2.01(a)(i) (other than any Cooperative Mortgage Loan paid in full or Designated Loan) any Mortgage Loan specifically identified in such certification as not covered by such certification), and in so transferred doing the Trustee may rely on the purported due execution and assigned:
(i) The original Mortgage Notegenuineness of any signature thereon. Within 180 days after the applicable Transfer Date, endorsed without recourse in blank by the CompanyTrustee agrees, including all intervening endorsements showing a complete chain for the benefit of endorsement from the originator Certificateholders, to certify to the CompanySeller, the Certificate Insurer and the Master Servicer that all Assignments of Mortgages have been executed as set forth in Section 2.01(a)(iii) and received, and that such documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule, and in so doing the Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such 60-day period or 180-day period, as applicable, the Trustee finds any such document constituting a part of a Mortgage File not to have been executed or received or to be unrelated to the Mortgage Loans identified in said Mortgage Loan Schedule or, if in the course of its review, the Trustee determines that such Mortgage File is otherwise defective in any material respect, the Trustee shall, promptly upon the conclusion of such review, notify the Seller, the Master Servicer and the Certificate Insurer, and the Seller shall have a period of 90 days after such notice within which to correct or cure any such defect; provided, however, that if such defect shall not have been corrected or cured within such 90-day period due primarily to the failure of the related office of real property or other records to return any document constituting a part of a Mortgage Note is a Confirmatory Mortgage NoteFile, the Seller shall so notify the Trustee in writing and the period during which such Confirmatory Mortgage Note defect may be payable directly to the Company corrected or may show a complete chain of endorsement cured shall be extended until such time as any such documents are returned from the named payee to the Company;
such related office (ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; providedno event, however, that if will such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement period extend beyond one (1) year from the named payee to the Company;
(ii) A counterpart date of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, and any continuation statements, filed by the originator discovery of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trusteedefect); and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) provided that prior to or concurrently with any such extension the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company Seller shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt a true copy of such document with a certification by the Company Seller on the face of all such documents copy substantially as follows: "certified true and instruments correct copy of original which has been transmitted for all recordation." The Trustee agrees, for the benefit of Certificateholders, within 60 days following receipt of the outstanding Mortgage Loans:
(1) Files after an Assignment Event, to certify to the Seller, the Certificate Insurer and the Master Servicer that it has reviewed each Mortgage File and that, as to each Mortgage Loan listed in the Mortgage with evidence of recording indicated thereon Loan Schedule (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has Loan paid in full or any Mortgage Loan specifically identified in the certification in the form annexed hereto as Exhibit E as not covered by such certification), (i) all documents constituting part of such Mortgage File required to be delivered to it pursuant to paragraphs (i) - (iv) of Section 2.01(a) are in its possession, (ii) such documents have been assigned reviewed by it and appear regular on their face and relate to such Mortgage Loan, (iii) based on its examination and only as to the Companyforegoing, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from information set forth in the originator Mortgage Loan Schedule which corresponds to the Company items (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)ii), showing a complete chain of assignment from the named originator to the Company. Pending such delivery(iii), the Company shall retain in its files (a) copies of the documents described in clauses (1vi) and (3viii) of the preceding sentencedefinition of "Mortgage Loan Schedule" accurately reflects information set forth in the Mortgage File. If within such 60-day period, without evidence the Trustee finds any document constituting a part of recording thereon, and (b) title insurance binders with respect the Mortgage File not to have been executed or received or to be unrelated to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain identified in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the said Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of MortgageLoan Schedule or, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise course of its review, the Trustee determines that such Mortgage File is otherwise defective in writing if such delivery to any material respect, the Trustee (shall notify the parties and follow the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature procedures set forth in Section 3.09the preceding paragraph.
(d) The Company Trustee shall have no responsibility for reviewing any Mortgage File except as expressly provided in subsection (c) of Section 2.01. Without limiting the effect of the preceding sentence, in reviewing any Mortgage File pursuant to such subsection, the Trustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form assigned and endorsed in blank or whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, but shall only be required to determine whether a document has been executed, that it appears to be what it purports to be and, where applicable, that it purports to be recorded, but shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining determine whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title executing any document is authorized to do so or whether any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companysignature thereon is genuine.
Appears in 1 contract
Conveyance of Mortgage Loans. (a) Each Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of such Seller in and to the applicable Initial Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of the Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the applicable Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The CompanyMaster Servicer confirms that, on behalf of the Sellers, concurrently with the transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders, without recourse, all right title and interest in and to the Initial Mortgage Loans. CHL further agrees (x) to cause The Bank of New York to enter into the Swap Contract Administration Agreement as Swap Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate swap transaction evidenced by the Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Swap Contract Administrator, on the terms and conditions set forth in the Swap Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, each Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of such Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of any related Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date. Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) Each Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in and to the Mortgage LoansCertificateholders, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and to the Mortgage Loans portion of the Trust Fund not otherwise conveyed to the Trustee to the extent provided above and that retention of record title of Mortgages (subject pursuant to Section 2.01(d2.01(a) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanb).
(bd) In connection with such transfer and assignment, On any Business Day during the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank Funding Period designated by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage CHL to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from Sellers, the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease Depositor and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateTrustee shall complete, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security execute and deliver a Subsequent Transfer Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with After the execution and delivery of this such Subsequent Transfer Agreement, due to a delay in connection with recording of on the MortgageSubsequent Transfer Date, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required set aside in the Pre-Funding Account an amount equal to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian)Subsequent Transfer Date Purchase Amount.
(3e) With respect to each Designated Loan, The transfer of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with satisfaction of each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) of the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loansconditions:
(1) the Mortgage with evidence Trustee and the Underwriter will be provided Opinions of recording indicated thereon (other than Counsel addressed to the Rating Agencies as with respect to a Cooperative Loanthe sale of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies with respect to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered as provided in Section 2.01(f);
(2) a copy the execution and delivery of such Subsequent Transfer Agreement or conveyance of the title insurance policy (other than with respect related Subsequent Mortgage Loans does not result in a reduction or withdrawal of any ratings assigned to a Cooperative Loan)the Certificates by the Rating Agencies;
(3) with respect to any Mortgage that has been assigned the Depositor shall deliver to the Company, Trustee an Officer's Certificate confirming the related recorded intervening assignment or assignments satisfaction of Mortgage, showing a complete chain each of assignment from the originator conditions set forth in this Section 2.01(e) required to the Company (other than with respect to a Cooperative Loan); andbe satisfied by such Subsequent Transfer Date;
(4) with respect each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of it under this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers with respect to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence breach of a Trigger Eventrepresentation and warranty with respect to a Subsequent Mortgage Loan set forth in this clause (4), the Company obligation under Section 2.03(e) of this Agreement of the applicable Seller, to cure, repurchase or replace such Subsequent Mortgage Loan shall be deemed constitute the sole remedy against such Seller respecting such breach available to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligenceCertificateholders, the Company has Depositor or should have had knowledge thereof. As promptly as practicable subsequent the Trustee;
(5) the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were selected in a manner reasonably believed not to be adverse to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments interests of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Certificateholders;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CWABS Asset-Backed Certificates Trust 2006-Abc1)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class P Grantor Trust for the benefit of the Class P Certificates. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after the Cut-Off Date. The transfer of principal and interest due and payable on the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on or before, the Certificates from and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title transfer and interest in and to the assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the extent provided above terms and that retention conditions of record title of Mortgages (subject to Section 2.01(d) the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement) is for convenience only and , hereby agrees that such Mortgage Loans remain subject to the Company holds record title solely as custodian for the Trustee for benefit terms of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the related Non-Serviced Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance Loan Intercreditor Agreement and, with respect to a each Serviced Pari Passu Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Loan and the intent of this Agreement. With respect to any Pledged Asset Serviced Companion Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage related Loan pursuant to the Pledged Asset Mortgage Servicing Pair Intercreditor Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee (or the Custodian, on behalf remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee) , the following documents Paying Agent, any Custodian, the Master Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may Special Servicer shall be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) Depositor to comply with the document delivery requirements of the Mortgage to the Trustee; andLoan Purchase Agreements and this Section 2.1(b).
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(ic) The original Mortgage Noteapplicable Seller shall, endorsed without recourse in blank by at the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, and any continuation statements, filed by the originator expense of such Cooperative Loan Seller as secured partyto each of its respective Mortgage Loans, each with evidence of recording promptly (and in any event within 45 days following the receipt thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent cause to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except submitted for recording information. With or filing (except with respect to any Mortgage that has been recorded in the name of MERS or its designees), as the case may be, in the appropriate public office for real property records or UCC financing statements, as appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of "Mortgage File;" provided, if the related Mortgage and UCC financing statements have been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall such assignments will be required to be prepared submitted for recording or delivered; filing and instead, the Company shall applicable Seller has agreed in the applicable Mortgage Loan Purchase Agreement to take all actions as are necessary to cause the Trust Fund Trustee to be shown as as, and the Trustee shall take all actions necessary to confirm that it is shown as, the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. Each such assignment shall reflect that it should be returned by the public recording office to the Trustee following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, and assignment of Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall provide evidence obtain therefrom a certified copy of the recorded original. The applicable Seller shall forward copies thereof to the Trustee (or and the Custodian).
(3) With respect to each Designated LoanSpecial Servicer and, if recorded in the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trusteename of MERS, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder Master Servicer and the Primary Insurance PolicySpecial Servicer, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary within 45 days of the Closing Date. The Company shall promptly furnish to , evidence confirming that the Trustee (or is shown as the Custodian) owner on the documents included in the Document Files (other than record of MERS. If any such documents previously delivered to the Trustee (document or the Custodian) as originals instrument is lost or copies) either (a) upon the written request of the Trustee returned unrecorded or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeunfiled, as the case may be, because of a defect therein, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments applicable Seller shall, pursuant to the Trustee applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall upon receipt thereof cause the same to be duly recorded or filed, at as appropriate. After the Company's expenseapplicable Seller has caused the Trustee to be identified on the records of MERS as the owner of a Mortgage, it shall be the sole responsibility of the Master Servicer to ensure that subsequent relevant events relating to the Mortgage (as, for example, assumptions and partial releases) are promptly and properly registered with MERS throughout the term of the related Mortgage Loan for so long as the Mortgage Loan is an asset of the Trust. The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the Primary Servicing Agreement in favor of the Trustee and the Special Servicer to empower the Trustee and, in the appropriate public office for real property records event of the failure or UCC financing statements, except that incapacity of the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided aboveTrustee, the Trustee shall record or cause Special Servicer, to be recorded or filed such assignment or UCC-3 financing statement submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as described in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). In The Sellers agree to reasonably cooperate with the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such recording parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or filingunder authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the related Seller's expense, after the periods set forth above; provided, however, the Company Trustee shall furnish not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents as may be reasonably necessary and records in the possession of the Depositor or the Sellers that relate to accomplish such recording the Mortgage Loans, Serviced Companion Mortgage Loans or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause B Notes and that are not required to be recorded a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer or filedthe Primary Servicer on its behalf, on or before the date that is 45 days following the Closing Date and shall be held by the Master Servicer or the Primary Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer or the Primary Servicer by the related Seller, the assignments of Mortgages or UCC-3 financing statement at Servicer Mortgage File, will include, to the expense extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the Company.following items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, the insurance policies or certificates (as applicable), the property inspection reports, any financial statements on the property, any escrow analysis, the tax bills, the Appraisal, the environmental report, the engineering report, the asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies. Delivery of any of the foregoing documents to the Primary Servicer (or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the Depositor's obligations under this
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Top21)
Conveyance of Mortgage Loans. (a) The Company, as of the Closing Date, and concurrently with the execution and delivery of this Agreementhereof, does hereby assign, transfer, assignsell, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including 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 for the benefit of the Certificateholders. Such assignment includes all principal and interest and principal received by the Company Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date or Subsequent Cut-off Date, as applicable). The Company Master Servicer hereby acknowledges the receipt by it has sold all rightof cash in an amount equal to $372,834.30 (the "Special Deposit"), title and representing interest in and to at the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian Rate, for the calendar month of March 2002, for those Mortgage Loans which do not have Monthly Payments due on April 1, 2002. The Master Servicer shall hold such amount in the Custodial Account and shall include such amount in the Available Distribution Amount for the Distribution Date in April 2002. The Trustee for benefit hereby acknowledges the receipt by it of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Pre-Funded Amount and the intent of this AgreementInterest Coverage Amount. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby has caused the Seller to deliver to the Trustee (or the Custodianto, on behalf of and deposit with the Trustee) , as described in the Mortgage Loan Purchase Agreement, with respect to each Initial Mortgage Loan, and as described in the Subsequent Mortgage Loan Purchase Agreement, with respect to each Subsequent Mortgage Loan, the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assignedinstruments:
(i) The the original Mortgage Note, Note endorsed without recourse in blank by recourse, "Bankers Trust Company of California, N.A., as trustee under the CompanyPooling and Servicing Agreement relating to Impac Secured Assets Corp., including Mortgage Pass-Through Certificates, Series 2002-2" with all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; providedPerson endorsing it to the Trustee or, however, that if such with respect to any Mortgage Loan as to which the original Mortgage Note is has been permanently lost or destroyed and has not been replaced, a Confirmatory Mortgage Note, such Confirmatory Mortgage Lost Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the CompanyAffidavit;
(ii) A counterpart the original recorded Mortgage, noting the presence of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator MIN of the Cooperative 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 indicated thereon or, if the original Mortgage has not been returned from the public recording office, a copy of the Mortgage certified by the Seller or the public recording office in which such Mortgage has been recorded to be a true and complete copy of the original Mortgage submitted for recording;
(iii) The related Cooperative Stock Certificateunless the Mortgage Loan is registered on the MERS(R)System, together with an undated stock power (a duly executed original Assignment of the Mortgage, without recourse, in recordable form to "Bankers Trust Company of California, N.A., as trustee," or other similar instrument) executed in blankto "Bankers Trust Company of California, N.A., as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2002-2";
(iv) A counterpart the original recorded Assignment or Assignments of the recognition agreement Mortgage showing an unbroken chain of assignment 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) or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Cooperative Seller to be a true and complete copy of the interests of the mortgagee with respect original Assignment submitted to the related Cooperative Loantitle insurance company for recording;
(v) The Security Agreementthe original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) Copies a copy of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;related hazard insurance policy; and
(vii) If applicablea true and correct copy of any assumption, copies of the UCC-3 assignments of the security interest modification, consolidation or substitution agreement. The Seller is obligated as described in clause (vi) abovethe Mortgage Loan Purchase Agreement, sent with respect to the appropriate public office for filingInitial Mortgage Loans, showing an unbroken chain of title from and will be obligated as described in the originator Subsequent Mortgage Loan Purchase Agreement, with respect to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator Subsequent Mortgage Loans to deliver to the Trustee; and
: (ixa) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding either the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded Mortgage, or in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form event such original cannot be delivered by the Company Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording Assignments of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgagethereon, showing a complete an unbroken chain of assignment from the originator to the Company (other than with respect to Seller, or in the event such original cannot be delivered by the Seller, a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the Company, the related filed intervening UCC-3 financing statements (not previously delivered Trustee pursuant to Section 2.01(b)(2)(vii))clause (iv) above. However, showing a complete chain of assignment from the named originator pursuant to the Company. Pending such deliveryMortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Subsequent Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger EventLoans), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company Seller need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a any jurisdiction under the laws of which, on the basis of as evidenced by an Opinion of Counsel reasonably satisfactory delivered by the Seller to the Trustee and satisfactory to each the Rating Agency (as evidenced in writing)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 Seller in the manner described above, at no expense to the Trust or the Trustee, upon the earliest to occur of: (i) direction by the Holders of Certificates evidencing at least 25% of the Voting Rights, (ii) the occurrence of a Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one assignment, 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 Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee against discharge of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Trustee because of any defect therein, the Seller is required, as described in the Mortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, as applicable) to prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this section. The Seller is required as described in the Mortgage Loan Purchase Agreement, with respect to the Initial Mortgage Loans, and will be required as described in the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans, to exercise its best reasonable efforts to deliver or cause to be delivered to the Trustee within 120 days of the Closing Date, with respect to the Initial Mortgage Loans, or the Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Trustee pursuant to this Section 2.01. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Seller further agrees that it will cause, at the Seller's own expense, as of the Closing Date, the MERS(R) System to indicate that such Mortgage Loans have been assigned by the Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Company further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. All original documents relating to the Mortgage Loans which are not delivered to the Trustee are and shall be held by the Master Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. Except as may otherwise expressly be provided herein, none of the Company, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Company or any valid assertion that any Person other than to the Trustee has title as provided in this Section be, and be construed as, a sale of the Mortgage Loans and the REMIC 1 Regular Interests as provided for in this Section 2.01 by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans and the REMIC 1 Regular Interests by the Company to the Trustee to secure a debt or any rights other obligation of the Company. However, in such Mortgage Loan. In the event that the Company fails or refuses to record or file Mortgage Loans and the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause REMIC 1 Regular Interests are held to be recorded or filed such assignment or UCC-3 financing statement at the expense property of the Company. In connection with , or if for any such recording reason this Agreement is held or filingdeemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof, (C) the REMIC 1 Regular Interests and (D) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (D); (c) the possession by the Trustee or any other agent of the Trustee of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall furnish be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such documents secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Agreement, take such actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments of Mortgages or UCC-3 financing statement at the expense term of the CompanyAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, as of the Closing Date, and concurrently with the execution and delivery of this Agreementhereof, does hereby assign, transfer, assignsell, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company Depositor in and to the Mortgage Loans, including 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 for the benefit of the Certificateholders. Such assignment includes all principal and interest and principal received by the Company Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby Depositor has requested the Seller pursuant to each Mortgage Loan Purchase Agreement to deliver to the Trustee (or the Custodianto, on behalf of and deposit with the Trustee) , as described in the related Mortgage Loan Purchase Agreement, the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assignedinstruments:
(i) The the original Mortgage Note, endorsed without recourse in blank by to the order of "Bankers Trust Company, including as trustee" with all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly Person endorsing it to the Company or may show a complete chain of endorsement from the named payee to the CompanyTrustee;
(ii) A counterpart the original recorded Mortgage or, if the original Mortgage has not been returned from the applicable public recording office, a copy of the Proprietary Lease Mortgage certified by the Seller to be a true and complete copy of the Assignment of Proprietary Lease executed in blank or original Mortgage submitted to the originator of the Cooperative Loantitle insurance company for recording;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) a duly executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form to "Bankers Trust Company, as trustee" or to "Bankers Trust Company, as trustee for the holders of DLJ Mortgage Acceptance Corp. Mortgage Pass- Through Certificates";
(iv) the original recorded Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued and if the Mortgage Loan was funded through a title insurance company pursuant to escrow or closing instructions precluding the title insurance company or other comparable escrow or closing agent from funding until it is prepared to issue the required title insurance coverage, a copy of such escrow or closing instructions;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the preliminary title report (or equivalent thereof) on the Mortgage Property; and
(viii) if any of the documents or instruments referred to above was executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to each Mortgage Loan Purchase Agreement to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Company Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording Assignments of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgagethereon, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the CompanySeller, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described or in the two preceding sentences are collectively referred to herein event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the "Document File" with respect to each Mortgage Loan.) The Company shall advise appropriate recording office, in those instances where copies thereof certified by the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously Seller were delivered to the Trustee pursuant to clause (or the Custodianiv) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Eventabove. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior Notwithstanding anything to the date of execution and delivery of contrary contained in this AgreementSection 2.01, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company Seller shall be deemed to have knowledge satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof.
01. While such Assignment to be recorded is being recorded, the Trustee shall retain a photocopy of such Assignment. If any Assignment is lost or returned unrecorded to the Trustee because of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligencedefect therein, the Company has Seller is required to prepare a substitute Assignment or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of cure such written noticedefect, as the case may be, and the Company Trustee shall insert the recording cause such Assignment to be recorded in accordance with this paragraph. The Seller is required under each Mortgage Loan Purchase Agreement to exercise its best reasonable efforts to deliver or filing information in the assignments of the Mortgages or UCC-3 assignments cause to be delivered to the Trustee and shall cause within 120 days of the same to be recorded Closing Date, or filed, at the Company's expense, such other date as is set forth in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a such Mortgage Loan secured by property in Purchase Agreement, the original or a jurisdiction under photocopy of the laws title insurance policy with respect to each of whichthe related Mortgage Loan, on the basis of an Opinion of Counsel reasonably satisfactory assigned to the Trustee pursuant to this Section 2.01. All original documents relating to the Mortgage Loans which are not delivered to the Trustee, to the extent delivered by the Seller to the Master Servicer, are and satisfactory to each Rating Agency (as evidenced shall be held by the Master Servicer in writing), recordation trust for the benefit of such assignment is not necessary to protect the Trustee against discharge on behalf of such the Certificateholders. Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loan Loans by the Company or any valid assertion that any Person other than Depositor to the Trustee has title as provided in this Section and the Uncertificated REMIC I Regular Interests as provided in Section 2.06 be, and be construed as, a sale of the Mortgage Loans and the Uncertificated REMIC I Regular Interests by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans and the Uncertificated REMIC I Regular Interests by the Depositor to the Trustee to secure a debt or any rights other obligation of the Depositor. However, in such Mortgage Loan. In the event that the Company fails Mortgage Loans and the Uncertificated REMIC I Regular Interests are held to be property of the Depositor, or refuses if for any reason this Agreement is held or deemed to record or file the assignment of Mortgages or UCC-3 financing statement create a security interest in the circumstances Mortgage Loans and the Uncertificated REMIC I Regular Interests, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided abovefor 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 and the Uncertificated REMIC I Regular Interests in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by the Seller to the Depositor pursuant to the related Mortgage Loan Purchase Agreements or granted by DLJMCI to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall record or cause be deemed to be recorded "possession by the secured party" or filed possession by a purchaser or a person designated by such assignment secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or UCC-3 financing statement at the expense 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 CompanyTrustee for the purpose of perfecting such security interest under applicable law. In connection The Depositor and the Trustee shall, to the extent consistent with any this Agreement, take such recording or filing, the Company shall furnish such documents actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the Uncertificated REMIC I Regular Interests, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments of Mortgages or UCC-3 financing statement at the expense term of the CompanyAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp Mort Pass THR Cert Ser 1995 Q7)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfersells, assigntransfers, set-assigns, sets over and otherwise convey conveys to the Trustee in trust for the benefit of the Certificateholders, without recourse recourse, all (except as provided hereini) all the right, title and interest of the Company Depositor (which does not include servicing rights) in and to the each Mortgage LoansLoan, including all interest and principal received by the Company or receivable on or with respect to such Mortgage Loans after the Cut-off Date and all interest and principal payments on the Mortgage Loans (other than received prior to the Cut-off Date in respect of installments of interest and principal due thereafter, but not including payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date (other than the rights of the Servicer to service the Mortgage Loans in accordance with this Agreement), (ii) the Depositor's rights under the Assignment Agreement and (iii) all proceeds of any of the foregoing. In addition, on or prior to the Closing Date, the Depositor shall cause the Mortgage Pool Insurer to deliver the Mortgage Pool Insurance Policy to the Trustee. In addition, on or prior to the Closing Date, the Depositor shall cause the Interest Rate Cap Agreement Counterparty to enter into the Interest Rate Cap Agreement with the Trustee, and the Depositor shall pay or cause to be paid on behalf of the Trust the payments owed to the Interest Rate Cap Agreement Counterparty as of the Closing Date under the Interest Rate Cap Agreement.
(b) In connection with the transfer and assignment set forth in clause (a) above, the Depositor has delivered or caused to be delivered to the Trustee or its designated agent, the Custodian, for the benefit of the Certificateholders, the documents and instruments with respect to each Mortgage Loan as assigned:
(i) the original Mortgage Note of the Mortgagor in the name of the Trustee or endorsed "Pay to the order of ________________ without recourse" and signed in the name of the last named endorsee by an authorized officer, together with all intervening endorsements showing a complete chain of endorsements from the originator of the related Mortgage Loan to the last endorsee or with respect to any Lost Mortgage Note (as such term is defined in the Pooling and Servicing Agreement), a lost note affidavit stating that the original Mortgage Note was lost or destroyed, together with a copy of such Mortgage Note;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage bearing evidence that such instruments have been recorded in the appropriate jurisdiction where the Mortgaged Property is located as determined by DLJMC (or, in lieu of the original of the Mortgage or the assignment thereof, a duplicate or conformed copy of the Mortgage or the instrument of assignment, if any, together with a certificate of receipt from the Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy or copies represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same and in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN of the related Mortgage Loan and either language indicating that the Mortgage Loan is a MOM Loan if 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;
(iii) for each Mortgage Loan that is not a MERS Mortgage Loan, the original Assignment of Mortgage, in blank, which assignment appears to be in form and substance acceptable for recording and, in the event that the related Seller acquired the Mortgage Loan in a merger, the assignment must be by "[Seller], successor by merger to [name of predecessor]", and in the event that the Mortgage Loan was acquired or originated by the related Seller while doing business under another name, the assignment must be by "[Seller], formerly known as [previous name]";
(iv) for each Mortgage Loan, at any time that such Mortgage Loan is not a MERS Mortgage Loan, the originals of all intervening Assignments of Mortgage not included in (iii) above showing a complete chain of assignment from the originator of such Mortgage Loan to the Person assigning the Mortgage to the Trustee, including any warehousing assignment, with evidence of recording on each such Assignment of Mortgage (or, in lieu of the original of any such intervening assignment, a duplicate or conformed copy of such intervening assignment together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy or copies represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same;
(v) an original of any related security agreement (if such item is a document separate from the Mortgage) and the originals of any intervening assignments thereof showing a complete chain of assignment from the originator of the related Mortgage Loan to the last assignee;
(vi) an original assignment of any related security agreement (if such item is a document separate from the Mortgage) executed by the last assignee in blank;
(vii) the originals of any assumption, modification, extension or guaranty agreement with evidence of recording thereon, if applicable (or, in lieu of the original of any such agreement, a duplicate or conformed copy of such agreement together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy(ies) represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located), or a certification or receipt of the recording authority evidencing the same;
(viii) if the Mortgage Note or Mortgage or any other document or instrument relating to the Mortgage Loan has been signed by a person on behalf of the Mortgagor, the original power of attorney or other instrument that authorized and empowered such person to sign bearing evidence that such instrument has been recorded, if so required, in the appropriate jurisdiction where the Mortgaged Property is located as determined by DLJMC (or, in lieu thereof, a duplicate or conformed copy of such instrument, together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy(ies) represent true and complete copy(ies)of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same; and
(ix) in the case of the First Mortgage Loans, the original mortgage title insurance policy, or if such mortgage title insurance policy has not yet been issued, an original or copy of a marked-up written commitment or a pro forma title insurance policy marked as binding and countersigned by the title insurance company or its authorized agent either on its face or by an acknowledged closing instruction or escrow letter. In the event the Seller delivers to the Trustee certified copies of any document or instrument set forth in 2.01(b) because of a delay caused by the public recording office in returning any recorded document, the Seller shall deliver to the Trustee, within 60 days of the Closing Date, an Officer's Certificate which shall (i) identify the recorded document, (ii) state that the recorded document has not been delivered to the Trustee due solely to a delay caused by the public recording office, and (iii) state the amount of time generally required by the applicable recording office to record and return a document submitted for recordation. In the event that in connection with any Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim recorded assignments or (c) the lender's title policy (together with all riders thereto) satisfying the requirements set forth above, concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office in the case of clause (a) or (b) above, or because the title policy has not been delivered to the Seller or the Depositor by the applicable title insurer in the case of clause (c) above, the Depositor shall promptly deliver to the Trustee, in the case of clause (a) or (b) above, such original Mortgage or such interim assignment, as the case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office, or a copy thereof, certified, if appropriate, by the relevant recording office and in the case of clause (c) above, if such lender's title policy is received by the Depositor, upon receipt thereof. As promptly as practicable subsequent to such transfer and assignment, and in any event, within thirty (30) days thereafter, the Trustee shall (at the Seller's expense) (i) affix the Trustee's name to each Assignment of Mortgage, as the assignee thereof, (ii) cause such assignment to be in proper form for recording in the appropriate public office for real property records within thirty (30) days after receipt thereof and (iii) cause to be delivered for recording in the appropriate public office for real property records the assignments of the Mortgages to the Trustee, except that, with respect to any assignment of a Mortgage as to which the Trustee has not received the information required to prepare such assignment in recordable form, the Trustee's obligation to do so and to deliver the same for such recording shall be as soon as practicable after receipt of such information and in any event within thirty (30) days after the receipt thereof, and the Trustee need not cause to be recorded (a) any assignment referred to in clause (iii) above which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered to the Trustee (at the Depositor's expense, provided such expense has been previously approved by the Depositor in writing) within 180 days of the Closing Date, acceptable to the Rating Agencies, the recordation of such assignment is not necessary to protect the Trustee's and the Certificateholders' interest in the related 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 by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Company acknowledges Depositor further agrees that it has sold will not, and will not permit the Servicer to, and the Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(c) The Trustee is authorized to appoint any bank or trust company approved by the Depositor as Custodian of the documents or instruments referred to in this Section 2.01, and to enter into a Custodial Agreement for such purpose and any documents delivered thereunder shall be delivered to the Custodian and any Officer's Certificates delivered with respect thereto shall be delivered to the Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section 2.01 be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee. It is, further, not the intention of the parties to this Agreement that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties to this Agreement, the Mortgage Loans are held to be the property of the Depositor, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans then (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; (b) the conveyance provided for in this Section 2.01 shall be deemed to be a grant by the Depositor to the Trustee for the benefit of the Certificateholders of a security interest in all of the Depositor's right, title and interest in and to the Mortgage Loans and all amounts payable to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership holders of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms thereof and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf all proceeds of the Trustee) conversion, voluntary or involuntary, of the following documents foregoing into cash, instruments, securities or instruments with respect to:
(1) Each Mortgage Loan (other property, including without limitation all amounts, other than any Cooperative Loan investment earnings, from time to time held or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded invested in the name Certificate Account, whether in the form of MERS or its designeecash, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Noteinstruments, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (securities or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trusteeproperty; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt possession by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any Custodian of such events shall give the items of property and such other party (and the Custodianitems of property as constitute instruments, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event)money, the Company negotiable documents or chattel paper shall be deemed to have knowledge be "in possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the New York Uniform Commercial Code; 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 benefit of the Certificateholders for the purpose of perfecting such security interest under applicable law (except that nothing in this clause (e) shall cause any person to be deemed to be an agent of the Trustee for any purpose other than for perfection of such downgrading referred to in the definition of Trigger Event ifsecurity interests unless, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent and then only to the Company's delivery or receipt of such written noticeextent, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to expressly appointed and authorized by the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing). The Depositor and the Trustee, recordation of upon directions from the Depositor, shall, to the extent consistent with this Agreement, take such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments term of Mortgages or UCC-3 financing statement at the expense of the Companythis Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2004-FFB)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor or the Master Servicer after the Cut-Off Date with respect to the Mortgage Loans. In exchange for such transfer and assignment, the Depositor shall receive the Certificates. The Depositor hereby directs the Securities Administrator to execute, not in its individual capacity, but solely as Securities Administrator on behalf of the Trust, and deliver the Yield Maintenance Agreement. Notwithstanding anything provided herein to the contrary, each of the parties hereto agrees and acknowledges that, notwithstanding the transfer, conveyance and assignment of the Mortgage Loans from the Depositor to the Trustee pursuant to this Agreement, the Servicing Rights Owner remains the sole and exclusive owner of the related Servicing Rights with respect to the SRO Mortgage Loans. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreements to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under each Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of Mortgage Loan documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the following form: “Pay to the order of Deutsche Bank National Trust Company, including all intervening endorsements showing as Trustee for HarborView Mortgage Loan Trust 2005-6, Mortgage Loan Pass-Through Certificates, Series 2005-6, without recourse”, or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a complete chain copy of endorsement from the originator to the Companyrelated mortgage note; provided, however, that if such substitutions of Lost Note Affidavits for original Mortgage Note Notes may occur only with respect to Mortgage Loans the aggregate Cut-Off Date Principal Balance of which is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly less than or equal to 2% of the Company or may show a complete chain of endorsement from the named payee to the CompanyCut-Off Date Aggregate Principal Balance;
(ii) Any assumption and modification agreement[reserved];
(iii) Except except as provided below, for any each Mortgage which has been recorded Loan that is not a MERS Mortgage Loan, the original Mortgage, and in the name case of each MERS or its designeeMortgage Loan, an assignment in recordable form (which may be included in a blanket assignment or assignments) the original Mortgage, noting the presence of the MIN for that Mortgage to Loan and either language indicating that the Trustee; and
(2) Each Cooperative Mortgage Loan (other than is a Designated MOM Loan if the Mortgage Loan is a MOM Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that or if such Mortgage Note is Loan was not a Confirmatory MOM Loan at origination, the original Mortgage Noteand the assignment to MERS, in each case 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 or, if such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain power of endorsement attorney has been submitted for recording but has not been returned from the named payee to applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificatecase may be, together with an undated stock power Officer’s Certificate of the Seller certifying that the copy of such Mortgage delivered to the Trustee (or other similar instrumentits Custodian) executed is a true copy and that the original of such Mortgage has been forwarded to the public recording office, or, in blankthe case of a Mortgage that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee and the Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in the Mortgage Loan;
(iv) A counterpart the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the recognition agreement by the Cooperative original thereof, together with an officer’s certificate of the interests Seller, title company, escrow agent or closing attorney certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its Custodian) on behalf of the mortgagee with respect Trust is a true copy and that the original of such agreement has been forwarded to the related Cooperative Loanpublic recording office;
(v) in the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment of Mortgage, in form and substance acceptable for recording. The Security AgreementMortgage shall be assigned to “Deutsche Bank National Trust Company, as Trustee for HarborView Mortgage Loan Trust 2005-6, Mortgage Loan Pass-Through Certificates, Series 2005-6, without recourse;”
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and case of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in the Proprietary Leasecase of an intervening Assignment of Mortgage that has been lost, a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee that such original intervening Assignment of Mortgage is not required to enforce the Trustee’s interest in the Mortgage Loans;
(vii) If applicablethe original Primary Insurance Policy, copies of the UCC-3 assignments of the security interest described in clause (vi) aboveif any, sent to the appropriate public office for filingor certificate, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Leaseif any;
(viii) An executed assignment (which may be the original or a blanket assignment for all Cooperative Loans) certified copy of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of lender’s title from the originator to the Trusteeinsurance policy; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in Cooperative Loan, the name of MERS or its designee, no Cooperative Loan Documents. In connection with the assignment of any MERS Mortgage Loan, the Mortgage in favor Seller agrees that it will take (or shall cause the applicable Servicer to take), at the expense of the Trustee shall be required to be prepared or delivered; insteadSeller (with the cooperation of the Depositor, the Company shall take all Trustee and the Master Servicer), such actions as are necessary to cause the Trust Fund MERS® System to be shown as indicate that such Mortgage Loans have been assigned by the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the Custodian).
(3case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the HarborView Mortgage Loan Trust 2005-6. With respect to each Designated LoanCooperative Loan the Seller, on behalf of the Company Depositor does hereby deliver to the Trustee the related Cooperative Loan Documents and the Seller will take (or cause the Custodianapplicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary under applicable law (including but not limited to the relevant UCC) in order to perfect the Designated Loan Closing Documents.
(c) In connection interest of the Trustee in the related Mortgaged Property. Assignments of each Mortgage with respect to each Mortgage Loan transferred that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and assigned not at the expense of the Trust or the Trustee) acceptable to the Trustee, the Company Rating Agency and the Master Servicer, recording in such states is not required to protect the Trustee’s interest in the related Mortgage Loans; provided, further, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall deliver to be submitted for recording by the Trustee Seller (or the Custodian) Seller will cause the following documents or instruments as promptly as practicableapplicable Servicer to submit each such assignment for recording), but in any event within 30 days, after receipt by at the Company of all such documents cost and instruments for all expense of the outstanding Mortgage Loans:
Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Mortgage Loan that has been assigned is not a MERS Mortgage Loan. The Trustee agrees to execute and deliver to the CompanyDepositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the related filed intervening UCC-3 financing statements (form attached as Exhibit G-1 hereto. If the original lender’s title insurance policy, or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(x) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) Trustee, promptly upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge receipt thereof, any other documents constituting a part of a Trigger EventMortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of For Mortgage Loans which (if any) that have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the CompanyClosing Date, in lieu of the Seller delivering the above documents documents, the Master Servicer shall deliver to the Trustee, or to the Custodian on behalf of the Trustee, prior to the first Distribution Date, an Officer’s Certificate, based on information provided to the Master Servicer from the Servicers, which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account have been so deposited. All original documents that are not delivered to the Trustee on behalf of the Trust shall be held by the Master Servicer or the applicable Servicer in trust for the Trustee, for the benefit of the Trust and the Certificateholders. The Depositor herewith delivers to the Trustee a certification of a Servicing Officer an executed copy of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyPurchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2005-6)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor or the Master Servicer after the Cut-Off Date with respect to the Mortgage Loans. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreements to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under each Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the following form: “Pay to the order of Deutsche Bank National Trust Company, including all intervening endorsements showing as Trustee for HarborView Mortgage Loan Trust 2003-1, Mortgage Loan Pass-Through Certificates, Series 2003-1, without recourse”, or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a complete chain copy of endorsement from the originator to the Companyrelated mortgage note; provided, however, that if such substitutions of Lost Note Affidavits for original Mortgage Note Notes may occur only with respect to Mortgage Loans the aggregate Cut-Off Date Principal Balance of which is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly less than or equal to 2% of the Company or may show a complete chain of endorsement from the named payee to the CompanyCut-Off Date Aggregate Principal Balance;
(ii) Any assumption except as provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name case of each MERS or its designeeMortgage Loan, an assignment in recordable form (which may be included in a blanket assignment or assignments) the original Mortgage, noting the presence of the MIN for that Mortgage to Loan and either language indicating that the Trustee; and
(2) Each Cooperative Mortgage Loan (other than is a Designated MOM Loan if the Mortgage Loan is a MOM Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that or if such Mortgage Note Loan was not a MOM Loan at origination, the original Mortgage and the assignment to MERS, in each case 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, together with an Officer’s Certificate of the Seller certifying that the copy of such Mortgage delivered to the Trustee (or its Custodian) is a Confirmatory true copy and that the original of such Mortgage Note, such Confirmatory Mortgage Note may be payable directly has been forwarded to the Company or may show public recording office, or, in the case of a complete chain Mortgage that has been lost, a copy thereof (certified as provided for under the laws of endorsement from the named payee appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Company;
(ii) A counterpart of the Proprietary Lease Trustee and the Assignment of Proprietary Lease executed Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in blank or to the originator of the Cooperative Mortgage Loan;
(iii) The related Cooperative Stock Certificatethe original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an undated stock power officer’s certificate of the Seller, title company, escrow agent or closing attorney certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or other similar instrumentits Custodian) executed in blankon behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office;
(iv) A counterpart in the case of the recognition agreement by the Cooperative each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment of the interests of the mortgagee with respect Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned to the related Cooperative Loan“Deutsche Bank National Trust Company, as Trustee for HarborView Mortgage Loan Trust 2003-1, Mortgage Loan Pass-Through Certificates, Series 2003-1, without recourse;”
(v) The Security Agreementin the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in the case of an intervening Assignment of Mortgage that has been lost, a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee that such original intervening Assignment of Mortgage is not required to enforce the Trustee’s interest in the Mortgage Loans;
(vi) Copies of the original UCC-1 financing statementPrimary Insurance Policy, and any continuation statementsif any, filed by the originator of such Cooperative Loan as secured partyor certificate, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Leaseif any;
(vii) If applicable, copies the original or a certified copy of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of lender’s title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;insurance policy; and
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in Cooperative Loan, the name of MERS or its designee, no Cooperative Loan Documents. In connection with the assignment of any MERS Mortgage Loan, the Mortgage in favor Seller agrees that it will take (or shall cause the applicable Servicer to take), at the expense of the Trustee shall be required to be prepared or delivered; insteadSeller (with the cooperation of the Depositor, the Company shall take all Trustee and the Master Servicer), such actions as are necessary to cause the Trust Fund MERS® System to be shown as indicate that such Mortgage Loans have been assigned by the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the Custodian).
(3case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the HarborView Mortgage Loan Trust 2003-1. With respect to each Designated LoanCooperative Loan the Seller, on behalf of the Company Depositor does hereby deliver to the Trustee the related Cooperative Loan Documents and the Seller will take (or cause the Custodianapplicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary under applicable law (including but not limited to the relevant UCC) in order to perfect the Designated Loan Closing Documents.
(c) In connection interest of the Trustee in the related Mortgaged Property. Assignments of each Mortgage with respect to each Mortgage Loan transferred that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and assigned not at the expense of the Trust or the Trustee) acceptable to the Trustee, the Company Rating Agency and the Master Servicer, recording in such states is not required to protect the Trustee’s interest in the related Mortgage Loans; provided, further, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall deliver to be submitted for recording by the Trustee Seller (or the Custodian) Seller will cause the following documents or instruments as promptly as practicableapplicable Servicer to submit each such assignment for recording), but in any event within 30 days, after receipt by at the Company of all such documents cost and instruments for all expense of the outstanding Mortgage Loans:
Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Mortgage Loan that has been assigned is not a MERS Mortgage Loan. The Trustee agrees to execute and deliver to the CompanyDepositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the related filed intervening UCC-3 financing statements (form attached as Exhibit G-1 hereto. If the original lender’s title insurance policy, or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(x) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) Trustee, promptly upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge receipt thereof, any other documents constituting a part of a Trigger EventMortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of For Mortgage Loans which (if any) that have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this AgreementClosing Date, the CompanySeller, in lieu of delivering the above documents to the Trusteedocuments, herewith delivers to the Trustee a certification of a Servicing Officer Trustee, or to the Custodian on behalf of the nature set forth Trustee, an Officer’s Certificate which shall include a statement to the effect that all amounts received in Section 3.09.
(d) The Company shall not be connection with such prepayment that are required to record be deposited in the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) Distribution Account have been so deposited. All original documents that are not delivered to the Trustee unless on behalf of the Company Trust shall be held by the Master Servicer or the Trustee obtains actual notice or knowledge applicable Servicer in trust for the Trustee, for the benefit of the occurrence Trust and the Certificateholders. Upon discovery or receipt of notice of any Trigger Event; providedmaterially defective document in, howeveror that a document is missing from, that a Mortgage File, the Seller shall have 90 days to cure such recording defect or filing deliver such missing document to the Trustee. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall not be required if the Company either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03 hereof. The Depositor herewith delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings an executed copy of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyPurchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Loan Pass-Through Certificates Series 2003-1)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Mortgage LoansTrustee pursuant to Section 14 thereof, including (iii) the Initial Deposit, (iv) the Depositor's rights under the Pari Passu Intercreditor Agreement and the 2001-TOP3 Pooling and Servicing Agreement with respect to the Pari Passu Loan, and the Depositor's rights under the Intercreditor Agreements, (v) with respect to the Class A-2 Certificates, the Swap Contract, the Class A-2 Regular Interest and funds or assets from time to time on deposit in the Floating Rate Account and (vi) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III. Such assignment includes all interest and principal received by the Company or receivable 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, and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on the Certificates from and after the Cut-Off Date. The transfer and assignment of the Pari Passu Loan to the Trustee and will not deliver any instrument of satisfaction or conveyance with respect the right to a service such Mortgage or a Mortgage Loan, or convey or purport Loan is subject to convey any interest in a Mortgage Loan, except in accordance with the terms and conditions of the intent of this 2001-TOP3 Pooling and Servicing Agreement and the Pari Passu Intercreditor Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee (or the Custodian, on behalf remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee) , the following documents Fiscal Agent, the Paying Agent, any Custodian, the Master Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may Special Servicer shall be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) Depositor to comply with the document delivery requirements of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred Purchase Agreements and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trusteethis Section 2.1(b). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with The applicable Seller shall, at its expense as to each Mortgage Loan transferred Loan, promptly (and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after 45 days following the receipt by the Company of all such documents and instruments thereof) cause to be submitted for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticefiling, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except as appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of "Mortgage File". Each such assignment shall reflect that it should be returned by the Company need not cause public recording office to be so completed and recorded any the Trustee following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, assignment of mortgage which relates to Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall obtain therefrom a Mortgage Loan secured by property in a jurisdiction under certified copy of the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory recorded original. The applicable Seller shall forward copies thereof to the Trustee and satisfactory the Special Servicer. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the applicable Seller shall, pursuant to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such applicable Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided abovePurchase Agreement, the Trustee shall record promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall upon receipt thereof cause the same to be duly recorded or filed such assignment filed, as appropriate. The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or UCC-3 financing statement before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the Primary Servicing Agreements in favor of the Trustee and the Special Servicer to empower the Trustee and, in the event of the failure or incapacity of the Trustee, the Special Servicer, to submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as described in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). In The Sellers agree to reasonably cooperate with the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such recording parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or filing, under authorization by any party hereto except that to the Company shall furnish extent that the absence of a document described in the second preceding sentence with respect to such documents Mortgage Loan remains unremedied as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2001-Top4)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor after the Cut-Off Date with respect to the Mortgage Loans. In exchange for such transfer and assignment, the Depositor shall receive the Certificates. The Depositor hereby directs the Trustee to execute, not in its individual capacity, but solely as Trustee on behalf of the Trust, and deliver the Yield Maintenance Agreements. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreement to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under the Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of Mortgage Loan documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, (i) the Company does hereby deliver to Depositor directs the Trustee to appoint The Bank of New York as Custodian, and (or ii) the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01 or the BONY Custodial Agreement, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the Company, including all intervening endorsements showing a complete chain of endorsement from the originator following form: “Pay to the Companyorder of U.S. Bank National Association, as Trustee for HarborView Mortgage Loan Trust 2005-12, Mortgage Loan Pass-Through Certificates, Series 2005-12, without recourse”, or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note; provided, however, that if such substitutions of Lost Note Affidavits for original Mortgage Note Notes may occur only with respect to Mortgage Loans the aggregate Cut-Off Date Principal Balance of which is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly less than or equal to 2% of the Company or may show a complete chain of endorsement from the named payee to the CompanyCut-Off Date Aggregate Principal Balance;
(ii) Any assumption except as provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name case of each MERS or its designeeMortgage Loan, an assignment in recordable form (which may be included in a blanket assignment or assignments) the original Mortgage, noting the presence of the MIN for that Mortgage to Loan and either language indicating that the Trustee; and
(2) Each Cooperative Mortgage Loan (other than is a Designated MOM Loan if the Mortgage Loan is a MOM Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that or if such Mortgage Note Loan was not a MOM Loan at origination, the original Mortgage and the assignment to MERS, in each case 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, together with an Officer’s Certificate of the Seller certifying that the copy of such Mortgage delivered to the Trustee (or its Custodian) is a Confirmatory true copy and that the original of such Mortgage Note, such Confirmatory Mortgage Note may be payable directly has been forwarded to the Company or may show public recording office, or, in the case of a complete chain Mortgage that has been lost, a copy thereof (certified as provided for under the laws of endorsement from the named payee appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Company;
(ii) A counterpart of the Proprietary Lease Trustee and the Assignment of Proprietary Lease executed Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in blank or to the originator of the Cooperative Mortgage Loan;
(iii) The related Cooperative Stock Certificatethe original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an undated stock power Officer’s Certificate of the Seller, title company, escrow agent or closing attorney certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or other similar instrumentits Custodian) executed in blankon behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office;
(iv) A counterpart in the case of the recognition agreement by the Cooperative each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment of the interests of the mortgagee with respect Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned to the related Cooperative Loan“U.S. Bank National Association, as Trustee for HarborView Mortgage Loan Trust 2005-12, Mortgage Loan Pass-Through Certificates, Series 2005-12, without recourse;”
(v) The Security Agreementin the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in the case of an intervening Assignment of Mortgage that has been lost, a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee that such original intervening Assignment of Mortgage is not required to enforce the Trustee’s interest in the Mortgage Loans;
(vi) Copies of the original UCC-1 financing statementPrimary Insurance Policy, and any continuation statementsif any, filed by the originator of such Cooperative Loan as secured partyor certificate, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Leaseif any;
(vii) If applicable, copies the original or a certified copy of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of lender’s title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;insurance policy; and
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in Cooperative Loan, the name of MERS or its designee, no Cooperative Loan Documents. In connection with the assignment of any MERS Mortgage Loan, the Mortgage in favor Seller agrees that it will take (or shall cause the Servicer to take), at the expense of the Trustee shall be required to be prepared or delivered; insteadSeller (with the cooperation of the Depositor and the Trustee, the Company shall take all such actions as are necessary to cause the Trust Fund MERS® System to be shown as indicate that such Mortgage Loans have been assigned by the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the Custodian).
(3case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the HarborView Mortgage Loan Trust 2005-12. With respect to each Designated LoanCooperative Loan the Seller, on behalf of the Company Depositor does hereby deliver to the Trustee the related Cooperative Loan Documents and the Seller will take (or cause the Servicer to take), at the expense of the Seller (with the cooperation of the Depositor and the Trustee, such actions as are necessary under applicable law (including but not limited to the relevant UCC) in order to perfect the interest of the Trustee in the related Mortgaged Property. Assignments of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee and the Rating Agency, recording in such states is not required to protect the Trustee’s interest in the related Mortgage Loans; provided, further, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall be submitted for recording by the Seller (or the Custodian) Seller will cause the Designated Loan Closing Documents.
(c) In connection with Servicer to submit each Mortgage Loan transferred such assignment for recording), at the cost and assigned expense of the Seller, in the manner described above, at no expense to the Trust or Trustee, upon the Company shall deliver earliest to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company occur of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor and the Trustee or the Custodian on behalf of the Trustee), in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Mortgage Loan that has been assigned to is not a MERS Mortgage Loan. If the Companyoriginal lender’s title insurance policy, the related filed intervening UCC-3 financing statements (or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(x) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, promptly upon receipt thereof, any other documents constituting a part of a Mortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. All original documents that are not delivered to the Custodian on behalf of the Trust shall be held by the Servicer in trust for the Trustee, for the benefit of the Trust and the Certificateholders. The Depositor herewith delivers to the Trustee a certification of a Servicing Officer an executed copy of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyPurchase Agreement.
Appears in 1 contract
Samples: Pooling Agreement (Mortgage Loan Pass-Through Certificates Series 2005-12)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all rightIn addition, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an An assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1i) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2ii) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3iii) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and;
(4iv) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company; and
(v) with respect to any Mortgage Loan secured by a leasehold interest, a copy of the related lease. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1i) and (3iii) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing evidence of any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. Such evidence shall consist, for each Mortgage Loan, of a certificate of private mortgage insurance relating to such Mortgage Loan or an electronic screen print setting forth the information contained in such certificate of private mortgage insurance, including, without limitation, information relating to the name of the mortgage insurance carrier, the certificate number, the loan amount, the property address, the effective date of coverage, the amount of coverage and the expiration date of the policy. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two second and third preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, 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 including all interest and principal received on or with respect to the Mortgage Loans on or after the Cut-off Date (other than Scheduled Payments due on the Mortgage Loans on or before the Cut-off Date). Concurrently with the execution of this Agreement, the Cap Agreement shall be delivered to the Securities Administrator. In connection therewith, the Depositor hereby directs the Securities Administrator (solely in its capacity as trustee of the Supplemental Interest Trust) and the Securities Administrator is hereby authorized to execute and deliver each of the Cap Agreement on behalf of the Supplemental Interest Trust, for the benefit of Certificateholders. The Depositor, the Sponsor, the Master Servicer, the Servicer, the Originator, the Credit Risk Manager and the Certificateholders (by their acceptance of such Certificates) acknowledge and agree that the Securities Administrator is executing and delivering the Cap Agreement solely in its capacity as trustee of the Supplemental Interest Trust and not in its individual capacity. The Securities Administrator shall have no duty or responsibility to enter into any other interest rate cap agreement upon the termination of the Cap Agreement unless so directed by the Depositor. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set-over and otherwise convey assign to the Trustee all of its rights and interest under the Purchase Agreement, including the right to enforce the Sponsor’s obligation to repurchase or substitute defective Mortgage Loans under Section 4 of the Purchase Agreement. The Trustee hereby accepts such assignment, and as set forth herein in Section 2.03(k), shall be entitled to exercise all the rights of the Depositor under the Purchase Agreement as if, for such purpose, it were the Depositor.
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Custodian for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note bearing all intervening endorsements necessary to show a complete chain of endorsements from the original payee, endorsed in blank, “Pay to the order of _____________, without recourse recourse”, and, if previously endorsed, signed in the name of the last endorsee by a duly qualified officer of the last endorsee;
(except ii) the original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording. The Mortgage shall be assigned, with assignee’s name left blank;
(iii) the original of each guarantee executed in connection with the Mortgage Note, if any;
(iv) the original recorded Mortgage, with evidence of recording thereon. If in connection with any Mortgage Loan, 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 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 Originator shall deliver or cause to be delivered to the Custodian, (A) in the case of a delay caused by the public recording office, a copy of such Mortgage certified by the Originator, escrow agent, title insurer or closing attorney to be a true and complete copy of the original recorded Mortgage and (B) in the case where a public recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, a copy of such Mortgage certified by such public recording office to be a true and complete copy of the original recorded Mortgage;
(v) originals or a certified copy of each modification agreement, if any;
(vi) the originals of all intervening assignments of Mortgage with evidence of recording thereon evidencing a complete chain of ownership from the originator of the Mortgage Loan to the last assignee, or if any such intervening assignment of Mortgage has not been returned from the applicable public recording office or has been lost or if such public recording office retains the original recorded intervening assignments of Mortgage, a photocopy of such intervening assignment of Mortgage, together with (A) in the case of a delay caused by the public recording office, an officer’s certificate of the Originator, escrow agent, closing attorney or the title insurer insuring the Mortgage stating that such intervening assignment of Mortgage has been delivered to the appropriate public recording office for recordation and that such original recorded intervening assignment of Mortgage or a copy of such intervening assignment of Mortgage certified by the appropriate public recording office to be a true and complete copy of the original recorded intervening assignment of Mortgage will be promptly delivered to the Custodian upon receipt thereof by the party delivering the officer’s certificate or by the Originator; or (B) in the case of an intervening assignment of mortgage where a public recording office retains the original recorded intervening assignment of Mortgage or in the case where an intervening assignment of Mortgage is lost after recordation in a public recording office, a copy of such intervening assignment of Mortgage with recording information thereon certified by such public recording office to be a true and complete copy of the original recorded intervening assignment of Mortgage;
(vii) if the Mortgage Note, the Mortgage, any Assignment of Mortgage or any other related document has been signed by a Person on behalf of the Mortgagor, the copy of the power of attorney or other instrument that authorized and empowered such Person to sign;
(viii) the original lender’s title insurance policy (or a marked title insurance commitment, in the event that an original lender’s title insurance policy has not yet been issued) in the form of an ALTA mortgage title insurance policy, containing all required endorsements and insuring the Trustee and its successors and assigns as provided hereinto the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan;
(ix) if applicable, the original of any Primary Mortgage Insurance Policy or certificate or, an electronic certification, evidencing the existence of the Primary Mortgage Insurance Policy or certificate, if private mortgage guaranty insurance is required; and
(x) original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any. To the extent not previously delivered to the Sponsor pursuant to the Seller’s Warranties and Servicing Agreement, the Originator shall promptly upon receipt from the respective recording office cause to be delivered to the Custodian the original recorded document described in clauses (iv) and (vi) above. From time to time, the Originator, the Depositor or the Servicer, as applicable, shall forward to the Custodian additional original documents, additional documents evidencing an assumption, modification, consolidation or extension of a Mortgage Loan, in accordance with the terms of this 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 the Seller’s Warranties and Servicing Agreement, on or prior to the Closing Date, the Originator shall deliver to the Custodian 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 complete recording information for a Mortgage, the Servicer shall promptly submit or cause to be submitted for recording, at the expense of the Originator 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)(ii). 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 have received an Opinion of Counsel from the Depositor, 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 Trust Fund’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 expense of the Originator, to “Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement dated as of January 1, 2007, for HSI Asset Loan Obligation Trust 2007-WF1”. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Originator 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 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 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 obligation 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 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 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 “HSI Asset Loan Obligation Trust 2007-WF1” and Deutsche Bank National Trust Company is hereby appointed as Trustee and Citibank is appointed as Securities Administrator 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 the Schedules hereto.
(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 Company Depositor in and to the Trust Fund (including, without limitation, the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii2.01(a)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HSI Asset Loan Obligation Trust 2007-Wf1)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class Q Grantor Trust for the -84- benefit of the Class Q Certificates. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after the Cut-Off Date. The transfer of principal and interest due and payable on the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on or before, the Certificates from and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title transfer and interest in and to the assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to the extent provided above and that retention of record title of Mortgages (service such Mortgage Loans are subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and conditions of the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, setrelated Non-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Serviced Mortgage Loan pursuant to Pooling and Servicing Agreement and the Pledged Asset related Non-Serviced Mortgage Servicing Loan Intercreditor Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver hereby agrees that such Mortgage Loans remain subject to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner terms of the related Non-Serviced Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERSIntercreditor Agreement and, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With with respect to each Designated Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan, the Company does hereby deliver to the Trustee related Loan Pair Intercreditor Agreement (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) Joint Mortgage Loan treated as a copy of the title insurance policy (other than Loan Pair in accordance with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the CompanySection 8.32 hereof, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a applicable Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writingdocuments), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Top20)
Conveyance of Mortgage Loans. (a) The Company, concurrently ---------------------------- with the execution and delivery of this Agreementhereof, does hereby sell, transfer, assign, set-set over and otherwise convey to the Trustee (for inclusion in the Trust Fund) without recourse (except as provided herein) all the right, title and interest of the Company in and to the Initial Mortgage Loans, including all interest and principal received by due after the Company Cut-off Date on or with respect to the Initial Mortgage Loans (other than it being understood that payments of principal and interest first due and payable on the Initial Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date shall not be conveyed to the Trustee pursuant hereto), and each Mortgage 100(Service Xxxx) Pledge Agreement and each Parent Power(Registered Trademark) Agreement. The foregoing sale, transfer, assignment, set-over and conveyance of each Parent Power(Registered Trademark) Agreement that is a Parent Power(Registered Trademark) Guaranty Agreement for Real Estate does not constitute and is not intended to result in an assumption by the Trustee or the Trust Fund of any obligation or liability of MLCC under the related Equity Access(Registered Trademark) Account (as defined in such Parent Power(Registered Trademark) Agreement). MLCC is authorized to correct any error in any Mortgage 100(Service Xxxx) Pledge Agreement or Parent Power(Registered Trademark) Agreement and to terminate any such agreement and release the related collateral in accordance with the terms thereof. In connection with the foregoing conveyance of the Initial Mortgage Loans, within 21 days after the Closing Date, the Master Servicer, on behalf of the Company, shall deliver to, and deposit with, the Custodian the documents or instruments listed in Exhibit B hereto with respect to each Mortgage Loan so assigned (the requirements for a Mortgage Loan secured by shares in a cooperative corporation are separately specified in clause (6) of Exhibit B hereto); provided that the Master Servicer shall deliver at least 50% of the Mortgage Notes on or before the Closing Date. By way of clarification, the remainder of this Section applies to Subsequent Mortgage Loans as well as the Initial Mortgage Loans. If in connection with any Mortgage Loan the Master Servicer cannot deliver the related Mortgage with evidence of recording thereon as provided above, or within the 180 days permitted in clause (2) of Exhibit B hereto, solely because of a delay caused by the public recording office to which such Mortgage has been delivered for recordation, the Master Servicer shall deliver or cause to be delivered to the Custodian an Officer's Certificate of the Master Servicer, stating that such Mortgage has been delivered to the appropriate public recording official for recordation. The Master Servicer shall promptly deliver or cause to be delivered to the Custodian such Mortgage with evidence of recording indicated thereon upon receipt thereof from the public recording official. Notwith- standing the above, the Master Servicer shall use all reasonable efforts to cause each original Mortgage with evidence of recording thereon to be delivered to the Custodian within 270 days of the Closing Date (or the Subsequent Transfer Date in the case of Subsequent Mortgage Loans). With respect to any Additional Collateral Mortgage Loan in respect of which there has been filed a UCC-1 financing statement in favor of MLCC as secured party, the Master Servicer shall, within 180 days after the Closing Date (or the Subsequent Transfer Date in the case of Subsequent Mortgage Loans), 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 Trustee and shall thereafter cause the filing of all necessary continuation statements. If the long-term unsecured debt of Xxxxxxx Xxxxx & Co., Inc., if it is rated by Xxxxx'x, is rated below A3 or if it is rated by Standard & Poor's, is rated below A-, or an Event of Default shall have occurred and is continuing or if MLCC is no longer the Master Servicer (unless each Rating Agency confirms that the absence of recordation will not result in the reduction or withdrawal of its rating of the Class A Certificates), then MLCC (or the successor Master Servicer in the case of an Event of Default) shall, within 60 days after such occurrence (unless the long-term unsecured debt of Xxxxxxx Xxxxx & Co., Inc., if it is rated by Standard & Poor's, is rated below BBB-, in which case MLCC will have 30 days after such occurrence), cause to be sent for recording to the appropriate public recording office for real property records each Assignment of Mortgage referred to in this Section 2.01 except for Mortgage Loans on Mortgaged Properties located in states where, as evidenced by an opinion of independent counsel acceptable to the Trustee, the Certificate Insurer, the Surety, the Company and the Rating Agencies, such recording is not required to protect the interests of the Trustee in the Mortgage Loan, including the related Mortgage, against the claim of any other transferee or any successor to or creditor of the Mortgage Loan Seller or the Originator of such Mortgage Loan. While each Assignment of Mortgage required to be recorded is being recorded, the Master Servicer shall leave with the Custodian a photocopy of such Assignment of Mortgage. If any such Assignment of Mortgage is returned unrecorded to the Master Servicer because of any defect therein, the Master Servicer shall cause such defect to be cured and such Assignment of Mortgage to be recorded in accordance with this paragraph. The Master Servicer shall deliver or cause to be delivered each original recorded Assignment of Mortgage and intermediate assignment to the Custodian within 120 days of the occurrence giving rise to the obligation to record or shall deliver to the Custodian on or before such date an Officer's Certificate stating that such Assignment of Mortgage has been delivered to the appropriate public recording office for recordation, but has not been returned solely because of a delay caused by such recording office. If the Master Servicer cannot cause any Mortgage or Assignment of Mortgage or intermediate assignments, subject to the provisions in this Section 2.01 regarding recording office delays, to be recorded and evidence of such recording delivered to the Custodian within 270 days of the occurrence giving rise to the obligation to record, the Mortgage Loan Seller shall be required to purchase such Mortgage Loan from the Trustee at the Purchase Price or the Mortgage Loan Seller shall be required to substitute another Mortgage Loan for such deficient Mortgage Loan in accordance with the procedures and subject to the limitations set forth in Section 3.02(i) through (viii), such repurchase or substitution obligation constituting the sole remedy available to the Trustee, the Certificateholders, the Certificate Insurer and the Surety for failure of a Mortgage Loan to be recorded. The ownership of each Mortgage Note, the Mortgage and the contents of the related Mortgage File is vested in the Trustee. Mortgage documents relating to the Mortgage Loan not delivered to the Trustee or the Custodian under the Custodial Agreement are and shall be held in trust by the Master Servicer or any Sub-Servicer, for the benefit of the Trustee as the owner thereof and the Master Servicer's or such Sub-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 Master Servicer or such Sub-Servicer is in a custodial capacity only. The Company acknowledges it has 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 all and to claim no ownership interest in the Mortgage Loans. It is the intention of this Agreement that the conveyance of the Company's right, title and interest in and to the Mortgage Loans Trust Fund pursuant to this Agreement shall constitute a purchase and sale and not a loan. If the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership conveyance of the Mortgage Loans by from the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant Seller to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) aboveis characterized as a pledge and not a sale, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge transferred to the Trustee, in addition to the Trust Fund, all of the Company's right, title and interest in, to and under the obligation deemed to be secured by said pledge; and it is the intention of this Agreement that the Mortgage Loan Seller and the Company shall also be deemed to have granted to the Trustee a first priority security interest in all of the Mortgage Loan Seller's and the Company's right, title, and interest in, to, and under the obligation deemed to be secured by said pledge and that the Trustee and the Custodian shall be deemed to be an independent custodian for purposes of perfection of such security interest. If the conveyance of the Mortgage Loans from the Company to the Trustee is characterized as a pledge, it is the intention of this Agreement that this Agreement shall constitute a security agreement under applicable law, and that the Mortgage Loan Seller and the Company shall be deemed to have granted to the Trustee a first priority security interest in all of Mortgage Loan Seller's and the Company'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 downgrading referred Person. In addition to in the definition conveyance of Trigger Event if, in the exercise of reasonable diligenceInitial Mortgage Loans, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticedoes hereby convey, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments assign and set over to the Trustee all of its right, title and shall cause interest in that portion of the same to be recorded or filed, at Trust Fund described in items (ii) through (ix) of the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed definition thereof and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory further assigns to the Trustee for the benefit of the Certificateholders, the Certificate Insurer and satisfactory to each Rating Agency (as evidenced in writing), recordation the Surety those representations and warranties of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement Seller contained in the circumstances provided above, Sale Agreement and described in Section 3.01 hereof and the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense benefit of the Company. In connection with any such recording or filing, remedies for the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companybreach thereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mort Inv Inc Mort Loan Asst Bk Pass Thru Cert Se 1997-A)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfersells, assigntransfers, set-assigns, sets over and otherwise convey conveys to the Trustee in trust for the benefit of the Certificateholders, without recourse (except as provided herein) recourse, all the right, title and interest of the Company Depositor (which does not include servicing rights) in and to the each Mortgage LoansLoan, including all interest and principal received by the Company or receivable on or with respect to such Mortgage Loans after the Cut-off Date and all interest and principal payments on the Mortgage Loans (other than received prior to the Cut-off Date in respect of installments of interest and principal due thereafter, but not including payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off DateDate (other than the rights of the Servicer to service the Mortgage Loans in accordance with this Agreement). In addition, on or prior to the Closing Date, the Depositor shall (i) cause the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee, (ii) cause the Mortgage Pool Insurer to deliver the Pool Insurance Policy to the Trustee and (iii) cause the Special Hazard Insurer to deliver the Special Hazard Insurance Policy to the Trustee.
(b) In connection with the transfer and assignment set forth in clause (a) above, the Depositor has delivered or caused to be delivered to the Trustee or its designated agent, the Custodian, for the benefit of the Certificateholders, the documents and instruments with respect to each Mortgage Loan as assigned:
(A) the original Mortgage Note of the Mortgagor in the name of the Trustee or endorsed "Pay to the order of ________________ without recourse" and signed in the name of the last named endorsee by an authorized officer, together with all intervening endorsements showing a complete chain of endorsements from the originator of the related Mortgage Loan to the last endorsee or (B) with respect to any Lost Mortgage Note (as such term is defined in the Pooling and Servicing Agreement), a lost note affidavit stating that the original Mortgage Note was lost or destroyed, together with a copy of such 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, naming the Trustee as the "mortgagee" or "beneficiary" thereof, and bearing on the face thereof the address of the Trustee, or, if the Mortgage does not name the Trustee as the mortgagee/beneficiary, the Mortgage, together with an instrument of assignment assigning the Mortgage, individually or together with other Mortgages, to the last assignee and bearing on the face thereof the address of the Trustee, and, in either case, bearing evidence that such instruments have been recorded in the appropriate jurisdiction where the Mortgaged Property is located as determined by DLJMC (or, in lieu of the original of the Mortgage or the assignment thereof, a duplicate or conformed copy of the Mortgage or the instrument of assignment, if any, together with a certificate of receipt from the Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy or copies represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same;
(iii) unless the Mortgage Loan is registered on the MERS(R) System, the original Assignment of Mortgage, in blank, which assignment appears to be in form and substance acceptable for recording and, in the event that the related Seller acquired the Mortgage Loan in a merger, the assignment must be by "[Seller], successor by merger to [name of predecessor]", and in the event that the Mortgage Loan was acquired or originated by the related Seller while doing business under another name, the assignment must be by "[Seller], formerly known as [previous name];
(iv) the original of any intervening assignment of the Mortgage not included in (iv) above, including any warehousing assignment, with evidence of recording thereon (or, in lieu of the original of any such intervening assignment, a duplicate or conformed copy of such intervening assignment together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy or copies represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same;
(v) an original of any related security agreement (if such item is a document separate from the Mortgage) and the originals of any intervening assignments thereof showing a complete chain of assignment from the originator of the related Mortgage Loan to the last assignee;
(vi) an original assignment of any related security agreement (if such item is a document separate from the Mortgage) executed by the last assignee in blank;
(vii) the originals of any assumption, modification, extension or guaranty agreement with evidence of recording thereon, if applicable (or, in lieu of the original of any such agreement, a duplicate or conformed copy of such agreement together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy(ies) represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located), or a certification or receipt of the recording authority evidencing the same;
(viii) if the Mortgage Note or Mortgage or any other document or instrument relating to the Mortgage Loan has been signed by a person on behalf of the Mortgagor, the original power of attorney or other instrument that authorized and empowered such person to sign bearing evidence that such instrument has been recorded, if so required, in the appropriate jurisdiction where the Mortgaged Property is located as determined by DLJMC (or, in lieu thereof, a duplicate or conformed copy of such instrument, together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy(ies) represent true and complete copy(ies)of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same; and
(ix) the original primary mortgage insurance certificate, if any, or copy of mortgage insurance certificate. In the event the Seller delivers to the Trustee certified copies of any document or instrument set forth in 2.01(b) because of a delay caused by the public recording office in returning any recorded document, the Seller shall deliver to the Trustee, within 60 days of the Closing Date, an Officer's Certificate which shall (i) identify the recorded document, (ii) state that the recorded document has not been delivered to the Trustee due solely to a delay caused by the public recording office, and (iii) state the amount of time generally required by the applicable recording office to record and return a document submitted for recordation. In the event that in connection with any Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim recorded assignments or (c) the lender's title policy (together with all riders thereto) satisfying the requirements set forth above, concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office in the case of clause (a) or (b) above, or because the title policy has not been delivered to the Seller or the Depositor by the applicable title insurer in the case of clause (c) above, the Depositor shall promptly deliver to the Trustee, in the case of clause (a) or (b) above, such original Mortgage or such interim assignment, as the case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office, or a copy thereof, certified, if appropriate, by the relevant recording office. As promptly as practicable subsequent to such transfer and assignment, and in any event, within thirty (30) days thereafter, the Trustee shall or shall cause the Custodian to (i) affix the Trustee's name to each Assignment of Mortgage, as the assignee thereof, (ii) cause such assignment to be in proper form for recording in the appropriate public office for real property records within thirty (30) days after receipt thereof and (iii) cause to be delivered for recording in the appropriate public office for real property records the assignments of the Mortgages to the Trustee, except that, with respect to any assignment of a Mortgage as to which the Trustee or the Custodian as applicable has not received the information required to prepare such assignment in recordable form, the Trustee's obligation to do so and to deliver the same for such recording shall be as soon as practicable after receipt of such information and in any event within thirty (30) days after the receipt thereof, and the Trustee or the Custodian as applicable need not cause to be recorded (a) any assignment which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the applicable Seller (at such Seller's expense) to the Trustee within 20 days of the Closing Date, acceptable to the Rating Agencies, the recordation of such assignment is not necessary to protect the Trustee's and the Certificateholders' interest in the related 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 related 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 by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Company acknowledges Depositor further agrees that it has sold will not, and will not permit the Servicer to, and the Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(c) The Trustee is authorized to appoint any bank or trust company approved by the Depositor as Custodian of the documents or instruments referred to in this Section 2.01, and to enter into a Custodial Agreement for such purpose and any documents delivered thereunder shall be delivered to the Custodian and any Officer's Certificates delivered with respect thereto shall be delivered to the Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section 2.01 be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee. It is, further, not the intention of the parties to this Agreement that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties to this Agreement, the Mortgage Loans are held to be the property of the Depositor, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans then (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; (b) the conveyance provided for in this Section 2.01 shall be deemed to be a grant by the Depositor to the Trustee for the benefit of the Certificateholders of a security interest in all of the Depositor's right, title and interest in and to the Mortgage Loans and all amounts payable to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership holders of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms thereof and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf all proceeds of the Trustee) conversion, voluntary or involuntary, of the following documents foregoing into cash, instruments, securities or instruments with respect to:
(1) Each Mortgage Loan (other property, including without limitation all amounts, other than any Cooperative Loan investment earnings, from time to time held or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded invested in the name Certificate Account, whether in the form of MERS or its designeecash, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Noteinstruments, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (securities or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trusteeproperty; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt possession by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any Custodian of such events shall give the items of property and such other party (and the Custodianitems of property as constitute instruments, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event)money, the Company negotiable documents or chattel paper shall be deemed to have knowledge be "in possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the New York Uniform Commercial Code; 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 benefit of the Certificateholders for the purpose of perfecting such security interest under applicable law (except that nothing in this clause (e) shall cause any person to be deemed to be an agent of the Trustee for any purpose other than for perfection of such downgrading referred to in the definition of Trigger Event ifsecurity interests unless, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent and then only to the Company's delivery or receipt of such written noticeextent, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to expressly appointed and authorized by the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing). The Depositor and the Trustee, recordation of upon directions from the Depositor, shall, to the extent consistent with this Agreement, take such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments term of Mortgages or UCC-3 financing statement at the expense of the Companythis Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor after the Cut-Off Date with respect to the Mortgage Loans. In exchange for such transfer and assignment, the Depositor shall receive the Certificates. The Depositor hereby directs the Trustee to execute, not in its individual capacity, but solely as Trustee on behalf of the Trust, and deliver the Yield Maintenance Agreement. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreement to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under each Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of Mortgage Loan documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, (i) the Company does hereby deliver to Depositor directs the Trustee to appoint The Bank of New York as a Custodian, and (or ii) the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01 or the BONY Custodial Agreement, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the Company, including all intervening endorsements showing a complete chain of endorsement from the originator following form: “Pay to the Companyorder of U.S. Bank National Association, as Trustee for HarborView Mortgage Loan Trust 2005-3, Mortgage Loan Pass-Through Certificates, Series 2005-3, without recourse”, or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note; provided, however, that if such substitutions of Lost Note Affidavits for original Mortgage Note Notes may occur only with respect to Mortgage Loans the aggregate Cut-Off Date Principal Balance of which is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly less than or equal to 2% of the Company or may show a complete chain of endorsement from the named payee to the CompanyCut-Off Date Aggregate Principal Balance;
(ii) Any assumption except as provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name case of each MERS or its designeeMortgage Loan, an assignment in recordable form (which may be included in a blanket assignment or assignments) the original Mortgage, noting the presence of the MIN for that Mortgage to Loan and either language indicating that the Trustee; and
(2) Each Cooperative Mortgage Loan (other than is a Designated MOM Loan if the Mortgage Loan is a MOM Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that or if such Mortgage Note Loan was not a MOM Loan at origination, the original Mortgage and the assignment to MERS, in each case 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, together with an Officer’s Certificate of the Seller certifying that the copy of such Mortgage delivered to the Trustee (or its Custodian) is a Confirmatory true copy and that the original of such Mortgage Note, such Confirmatory Mortgage Note may be payable directly has been forwarded to the Company or may show public recording office, or, in the case of a complete chain Mortgage that has been lost, a copy thereof (certified as provided for under the laws of endorsement from the named payee appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Company;
(ii) A counterpart of the Proprietary Lease Trustee and the Assignment of Proprietary Lease executed Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in blank or to the originator of the Cooperative Mortgage Loan;
(iii) The related Cooperative Stock Certificatethe original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an undated stock power Officer’s Certificate of the Seller, title company, escrow agent or closing attorney certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or other similar instrumentits Custodian) executed in blankon behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office;
(iv) A counterpart in the case of the recognition agreement by the Cooperative each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment of the interests of the mortgagee with respect Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned to the related Cooperative Loan“U.S. Bank National Association, as Trustee for HarborView Mortgage Loan Trust 2005-3, Mortgage Loan Pass-Through Certificates, Series 2005-3, without recourse;”
(v) The Security Agreementin the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in the case of an intervening Assignment of Mortgage that has been lost, a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee that such original intervening Assignment of Mortgage is not required to enforce the Trustee’s interest in the Mortgage Loans;
(vi) Copies of the original UCC-1 financing statementPrimary Insurance Policy, and any continuation statementsif any, filed by the originator of such Cooperative Loan as secured partyor certificate, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Leaseif any;
(vii) If applicable, copies the original or a certified copy of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of lender’s title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;insurance policy; and
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in Cooperative Loan, the name of MERS or its designee, no Cooperative Loan Documents. In connection with the assignment of any MERS Mortgage Loan, the Mortgage in favor Seller agrees that it will take (or shall cause the Servicer to take), at the expense of the Trustee shall be required to be prepared or delivered; insteadSeller (with the cooperation of the Depositor and the Trustee, the Company shall take all such actions as are necessary to cause the Trust Fund MERS® System to be shown as indicate that such Mortgage Loans have been assigned by the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the Custodian).
(case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the HarborView Mortgage Loan Trust 2005-3) . With respect to each Designated LoanCooperative Loan the Seller, on behalf of the Company Depositor does hereby deliver to the Trustee the related Cooperative Loan Documents and the Seller will take (or cause the CustodianServicer to take), at the expense of the Seller (with the cooperation of the Depositor and the Trustee, such actions as are necessary under applicable law (including but not limited to the relevant UCC) in order to perfect the Designated Loan Closing Documents.
(c) In connection interest of the Trustee in the related Mortgaged Property. Assignments of each Mortgage with respect to each Mortgage Loan transferred that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and assigned not at the expense of the Trust or the Trustee) acceptable to the Trustee, the Company Rating Agency, recording in such states is not required to protect the Trustee’s interest in the related Mortgage Loans; provided, further, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall deliver to be submitted for recording by the Trustee Seller (or the Custodian) Seller will cause the following documents or instruments as promptly as practicableServicer to submit each such assignment for recording), but in any event within 30 days, after receipt by at the Company of all such documents cost and instruments for all expense of the outstanding Mortgage Loans:
Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor and the Trustee or the Custodian on behalf of the Trustee, in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Mortgage Loan that has been assigned to is not a MERS Mortgage Loan. If the Companyoriginal lender’s title insurance policy, the related filed intervening UCC-3 financing statements (or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(x) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, promptly upon receipt thereof, any other documents constituting a part of a Mortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. All original documents that are not delivered to the Custodian on behalf of the Trust shall be held by the Servicer in trust for the Trustee, for the benefit of the Trust and the Certificateholders. The Depositor herewith delivers to the Trustee a certification of a Servicing Officer an executed copy of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyPurchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2005-3)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey to the Trustee Trustee, on behalf of the Trust, without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Initial Mortgage Loan identified on the Mortgage LoansLoan Schedules, including the related Cut-off Date Principal Balance, all interest accruing thereon after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) property which secured each such Initial Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Initial Mortgage Loans; (iv) all other assets included or to be included in the Trust Fund; (v) all proceeds of any of the foregoing; (vi) the rights of the Depositor under the Consulting Agreement; and (vii) the rights of the Depositor under each Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement. Such assignment includes all interest and principal received by due to the Company on Depositor or the Servicers after the Cut-off Date with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date)Loans. The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company Depositor does hereby deliver to and deposit with the Trustee (Trustee, or the Custodian, Custodian on behalf of the Trustee) , for the benefit of the Certificateholders, the following documents or instruments with respect to:
(1) Each to each Initial Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:assigned and the Depositor shall, in accordance with Section 2.04, deliver or cause to be delivered to the Trustee, or the Custodian on behalf of the Trustee, for the benefit of the Certificateholders, the following documents or instruments with respect to each Additional Mortgage Loan so transferred and assigned (with respect to each Mortgage Loan, a "Mortgage File"):
(i) The the original Mortgage Note, endorsed without recourse in blank by or with respect to any lost Mortgage Note, an original Lost Note Affidavit, together with a copy of the Companyrelated Mortgage Note;
(ii) the original Mortgage with evidence of recording thereon, including all intervening endorsements showing and the original recorded power of attorney, if the Mortgage was executed pursuant to a complete chain power of endorsement attorney, with evidence of recording thereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the originator applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, certified to be a true and complete copy of the Companyoriginal submitted for recording;
(iii) an original Assignment (which may be in blank), in form and substance acceptable for recording; provided, however, that if such the related Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designeeMortgage Electronic Registration Systems, an assignment in recordable form Inc. (which may be included in a blanket assignment or assignments"MERS") of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage Assignment in favor of the Trustee shall will be required to be prepared or delivered; delivered and instead, the Company related Servicer shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS;
(iv) an original copy of any intervening Assignment showing a complete chain of assignments;
(v) the original or a certified copy of lender's title insurance policy; and
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any. The Trustee, or the Custodian on behalf of the Trustee, agrees to execute and shall provide evidence thereof deliver to the Trustee Depositor (i) with respect to the Initial Mortgage Loans, on or prior to the Closing Date, an acknowledgment of receipt of the original Mortgage Notes relating to the Initial Mortgage Loans (with any exceptions noted), substantially in the form attached as Exhibit F-3 hereto and (ii) with respect to the Additional Mortgage Loans, on or prior to each Additional Transfer Date, an acknowledgment of receipt of the original Mortgage Notes relating to the Additional Mortgage Loans (with any exceptions noted). Notwithstanding the foregoing, a Servicer shall not be responsible or liable for any loss that occurs because an Assignment was not recorded by the Seller or the Depositor subsequent to the Seller's purchase of the Mortgage Loans, including but not limited to, any failure of such Servicer to receive notices related to such Assignment. If any of the documents referred to in Section 2.01(ii), (iii) or (iv) above have as of the Closing Date (or the Custodian).
(3) With applicable Additional Transfer Date, with respect to each Designated Loanthe Additional Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the Company does hereby obligations of the Depositor to deliver such documents shall be deemed to the Trustee be satisfied upon (or the Custodian1) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned delivery to the Trustee, or the Company shall deliver to Custodian on the Trustee Trustee's behalf, no later than the Closing Date (or the Custodian) the following documents or instruments as promptly as practicableapplicable Additional Transfer Date, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to the Additional Mortgage Loans), of a Cooperative Loan);
copy of each such document certified by the Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Seller, delivery to the Trustee, or Custodian on the Trustee's behalf, promptly upon receipt thereof of either the original or a copy of such document certified by the title insurance policy (applicable public recording office to be a true and complete copy of the original. The Depositor shall deliver or cause to be delivered to the Trustee, or the Custodian on the Trustee's behalf, promptly upon receipt thereof any other than with respect to documents constituting a Cooperative Loan);
(3) 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. Upon discovery or receipt of notice of any materially defective document in, or that has been assigned to the Companya document is missing from, a Mortgage File, the related recorded intervening assignment Seller shall have 120 days to cure such defect or assignments of Mortgage150 days following the Closing Date (or the applicable Additional Transfer Date, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Additional Mortgage Loans (other than with respect to a Cooperative LoanLoans). The Company shall also retain , in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating case of missing Mortgages or Assignments or deliver such missing document to the Trustee, or the Custodian on the Trustee's behalf. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall either repurchase or substitute for such Mortgage Loans during Loan in accordance with Section 2.03. No recording of an Assignment of Mortgage will be required in a state if either (i) the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery Depositor furnishes to the Trustee (and the CustodianSecurities Administrator an unqualified Opinion of Counsel reasonably acceptable to the Trustee and the Securities Administrator 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) shall the recordation of an Assignment of Mortgage in such state is not have occurred required by either Rating Agency in order to obtain the initial ratings on or before the first anniversary of Certificates on the Closing Date. As of the date hereof, recordation is not required in any state by any Rating Agency to obtain the initial ratings of the Certificates. The Company shall promptly furnish Depositor herewith delivers to the Trustee (or executed copies of the Custodian) Originator Mortgage Loan Purchase Agreements and the documents Mortgage Loan Purchase Agreement. It is agreed and understood by the parties hereto that it is not intended that any mortgage loan be included in the Document Files Trust that is a "High Cost Home Loan" as defined in any of (other than any such documents previously delivered to i) the Trustee New Jersey Home Ownership Act effective November 27, 2003, (or ii) the CustodianNew Mexico Home Loan Protection Act, effective January 1, 2004, (iii) as originals or copies) either (a) upon the written request of the Trustee Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004 or (biv) when the Company or Indiana Home Loan Practices Act, effective January 1, 2005. Concurrently with the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering Depositor shall deliver the above documents Mortgage Loan Schedules to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event)Securities Administrator, the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee Master Servicer and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyServicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (ABFC 2006-He1 Trust)
Conveyance of Mortgage Loans. (a) Each Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of such Seller in and to the applicable Initial Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of the Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the applicable Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The CompanyMaster Servicer confirms that, on behalf of the Sellers, concurrently with the transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor (i) sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Initial Mortgage Loans and (ii) causes the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee. CHL further agrees (x) to cause The Bank of New York to enter into the Corridor Contract Administration Agreement as Corridor Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate corridor transaction evidenced by each Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Corridor Contract Administrator, on the terms and conditions set forth in the Corridor Contract Assignment Agreement. In addition, CHL further agrees (x) to cause The Bank of New York to enter into the Swap Contract Administration Agreement as Swap Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate swap transaction evidenced by the Swap Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Swap Contract Administrator, on the terms and conditions set forth in the Swap Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, each Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of such Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of any related Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date. Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) Each Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in Certificateholders and to the Mortgage LoansCertificate Insurer, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and to the Mortgage Loans portion of the Trust Fund not otherwise conveyed to the Trustee to the extent provided above and that retention of record title of Mortgages (subject pursuant to Section 2.01(d2.01(a) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanb).
(bd) In connection with such transfer and assignment, On any Business Day during the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank Funding Period designated by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage CHL to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from Sellers, the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease Depositor and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateTrustee shall complete, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security execute and deliver a Subsequent Transfer Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with After the execution and delivery of this such Subsequent Transfer Agreement, due to a delay in connection with recording of on the MortgageSubsequent Transfer Date, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required set aside in the Pre-Funding Account an amount equal to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian)Subsequent Transfer Date Purchase Amount.
(3e) With respect to each Designated Loan, The transfer of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with satisfaction of each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) of the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loansconditions:
(1) the Mortgage with evidence Trustee, the Underwriters and the Certificate Insurer will be provided Opinions of recording indicated thereon (other than Counsel addressed to the Rating Agencies and the Certificate Insurer as with respect to a Cooperative Loanthe sale of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies and the Certificate Insurer with respect to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered as provided in Section 2.01(f);
(2) a copy the execution and delivery of such Subsequent Transfer Agreement or conveyance of the title insurance policy related Subsequent Mortgage Loans does not result in a reduction or withdrawal of any ratings assigned to the Certificates by the Rating Agencies (other than with respect without regard to a Cooperative Loanthe Certificate Insurance Policy, in the case of the Class A Certificates);
(3) with respect to any Mortgage that has been assigned the Depositor shall deliver to the CompanyTrustee an Officer's Certificate confirming the satisfaction of each of the conditions set forth in this Section 2.01(e) required to be satisfied by such Subsequent Transfer Date;
(4) each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to it under this Agreement, the related recorded intervening assignment or assignments of Mortgageprovided, showing a complete chain of assignment from the originator to the Company (other than however, that with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing breach of a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) representation and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than warranty with respect to a Cooperative LoanSubsequent Mortgage Loan set forth in this clause (4). The Company , the obligation under Section 2.03(f) of this Agreement of the applicable Seller, to cure, repurchase or replace such Subsequent Mortgage Loan shall also retain constitute the sole remedy against such Seller respecting such breach available to Certificateholders, the Depositor, the Certificate Insurer or the Trustee;
(5) the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were selected in its files a manner reasonably believed not to be adverse to the Primary Insurance Policy evidencing any primary mortgage insurance relating to interests of the Certificateholders or the Certificate Insurer;
(6) no Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was 30 or more days delinquent as of the related Cut-off Date;
(7) following the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer Date, the characteristics of the Mortgage Loans during will not vary by more than the period when amount specified below from the related insurance is in force. (The copies characteristics listed below; provided that for the purpose of making such calculations, the characteristics for any Initial Mortgage Loan made will be taken as of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Initial Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer characteristics for any Subsequent Mortgage Loans will be taken as of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Subsequent Cut-off Date;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CWHEQ Home Equity Loan Trust, Series 2006-S10)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all rightIn addition, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an An assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1i) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2ii) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3iii) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4iv) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1i) and (3iii) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.and
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class P Grantor Trust for the benefit of the Class P Certificates. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after the Cut-Off Date. The transfer of principal and interest due and payable on the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on or before, the Certificates from and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title transfer and interest in and to the assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to the extent provided above and that retention of record title of Mortgages (service such Mortgage Loans are subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and conditions of the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, setrelated Non-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Serviced Mortgage Loan pursuant to Pooling and Servicing Agreement and the Pledged Asset related Non-Serviced Mortgage Servicing Loan Intercreditor Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver hereby agrees that such Mortgage Loans remain subject to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner terms of the related Non-Serviced Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERSIntercreditor Agreement and, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With with respect to each Designated Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan, the Company does hereby deliver to the Trustee related Loan Pair Intercreditor Agreement (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) Joint Mortgage Loan treated as a copy of the title insurance policy (other than Loan Pair in accordance with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the CompanySection 8.31 hereof, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a applicable Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writingdocuments), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Top25)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfersells, assigntransfers, set-assigns, sets over and otherwise convey conveys to the Trustee in trust for the benefit of the Certificateholders, without recourse (except as provided herein) recourse, all the right, title and interest of the Company Depositor (which does not include servicing rights) in and to the each Mortgage LoansLoan, including all interest and principal received by the Company or receivable on or with respect to such Mortgage Loans after the Cut-off Date and all interest and principal payments on the Mortgage Loans (other than received prior to the Cut-off Date in respect of installments of interest and principal due thereafter, but not including payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off DateDate (other than the rights of the Servicer to service the Mortgage Loans in accordance with this Agreement). In addition, on or prior to the Closing Date, the Depositor shall (i) cause the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee and (ii) cause the Mortgage Pool Insurer to deliver the Pool Insurance Policy to the Trustee.
(b) In connection with the transfer and assignment set forth in clause (a) above, the Depositor has delivered or caused to be delivered to the Trustee or its designated agent, the Custodian, for the benefit of the Certificateholders, the documents and instruments with respect to each Mortgage Loan as assigned:
(i) the original Mortgage Note bearing all intervening endorsements and including any riders to the Mortgage Note, endorsed "Pay to the order of ________________, without recourse" and signed in the name of the last named endorsee by an authorized officer;
(ii) the original of any guarantee executed in connection with the Mortgage Note (if any);
(iii) 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 copies certified by the related recording office or if the original Mortgage has not yet been returned from the recording office, a copy certified by or on behalf of the Seller indicating that such Mortgage has been delivered for recording. The Company acknowledges return directions for the original Mortgage should indicate, when recorded, mail to the Seller;
(iv) the originals of all assumption, modification, consolidation or extension agreements, (or, if an original of any of these documents has not been returned from the recording office, a copy thereof certified by or on behalf of the Seller, the original to be delivered to Seller forthwith after return from such recording office) with evidence of recording thereon, if any; 50
(v) unless the Mortgage Loan is registered on the MERS(R) System, the original Assignment of Mortgage as appropriate, in recordable form, for each Mortgage Loan assigned in blank;
(vi) the originals of any intervening recorded Assignments of Mortgage, showing a complete chain of assignment from origination to the Seller (or to MERS, if the Mortgage Loan is registered on the MERS(R) System and noting the presence of a MIN), including warehousing assignments, with evidence of recording thereon (or, if an original intervening Assignment of Mortgage has not been returned from the recording office, a copy thereof certified by or on behalf of the Seller, the original to be delivered to the Trustee forthwith after return from such recording office);
(vii) the original mortgage title insurance policy, or copy of title commitment (or in appropriate jurisdictions, attorney's opinion of title and abstract of title);
(viii) the original primary mortgage insurance certificate, if any, or copy of mortgage insurance certificate; and
(ix) in the case of a Co-op Loan, the originals of the following documents or instruments: a copy of the Co-op Lease and the assignment of such Co-op Lease to the originator of the Mortgage Loan, with all intervening assignments showing a complete chain of title and an assignment thereof by the Seller; the stock certificate together with an undated stock power relating to such stock certificate executed in blank; the recognition agreement in substantially same form as standard "AZTECH" form; and copies of the financial statement filed by the originator as secured party and, if applicable, a filed UCC-3 assignment of the subject security interest showing a complete chain of title, together with an executed UCC-3 assignment of such security interest by the Seller in a form sufficient for filing. In the event the Seller delivers to the Trustee certified copies of any document or instrument set forth in 2.01(b) because of a delay caused by the public recording office in returning any recorded document, the Seller shall deliver to the Trustee, within 60 days of the Closing Date, an Officer's Certificate which shall (i) identify the recorded document, (ii) state that the recorded document has not been delivered to the Trustee due solely to a delay caused by the public recording office, and (iii) state the amount of time generally required by the applicable recording office to record and return a document submitted for recordation. In the event that in connection with any Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim recorded assignments or (c) the lender's title policy (together with all riders thereto) satisfying the requirements set forth above, concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office in the case of clause (a) or (b) above, or because the title policy has not been delivered to the Seller or the Depositor by the applicable title insurer in the case of clause (c) above, the Depositor shall promptly deliver to the Trustee, in the case of clause (a) or (b) above, such original Mortgage or such interim assignment, as the case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office, or a copy thereof, certified, if appropriate, by the relevant recording office. As promptly as practicable subsequent to such transfer and assignment, and in any event, within thirty (30) days thereafter, the Trustee shall or shall cause the Custodian to (i) affix the Trustee's name to each Assignment of Mortgage, as the assignee thereof, (ii) cause such assignment to be in proper form for recording in the appropriate public office for real property records within thirty (30) days after receipt thereof and (iii) cause to be delivered for recording in the appropriate public office for real property records the assignments of the Mortgages to the Trustee, except that, with respect to any assignment of a Mortgage as to which the Trustee or the Custodian as applicable has not received the information required to prepare such assignment in recordable form, the Trustee's obligation to do so and to deliver the same for such recording shall be as soon as practicable after receipt of such information and in any event within thirty (30) days after the receipt thereof, and the Trustee or the Custodian as applicable need not cause to be recorded (a) any assignment which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the applicable Seller (at such Seller's expense) to the Trustee, acceptable to the Rating Agencies, the recordation of such assignment is not necessary to protect the Trustee's and the Certificateholders' interest in the related 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 related 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 has sold 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 by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(c) The Trustee is authorized to appoint any bank or trust company approved by the Depositor as Custodian of the documents or instruments referred to in this Section 2.01, and to enter into a Custodial Agreement for such purpose and any documents delivered thereunder shall be delivered to the Custodian and any Officer's Certificates delivered with respect thereto shall be delivered to the Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section 2.01 be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee. It is, further, not the intention of the parties to this Agreement that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties to this Agreement, the Mortgage Loans are held to be the property of the Depositor, or if any for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans then (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; (b) the conveyance provided for in this Section 2.01 shall be deemed to be a grant by the Depositor to the Trustee for the benefit of the Certificateholders of a security interest in all of the Depositor's right, title and interest in and to the Mortgage Loans and all amounts payable to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership holders of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms thereof and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf all proceeds of the Trustee) conversion, voluntary or involuntary, of the following documents foregoing into cash, instruments, securities or instruments with respect to:
(1) Each Mortgage Loan (other property, including without limitation all amounts, other than any Cooperative Loan investment earnings, from time to time held or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded invested in the name Certificate Account, whether in the form of MERS or its designeecash, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Noteinstruments, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (securities or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trusteeproperty; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt possession by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any Custodian of such events shall give the items of property and such other party (and the Custodianitems of property as constitute instruments, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event)money, the Company negotiable documents or chattel paper shall be deemed to have knowledge be "in possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the New York Uniform Commercial Code; 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 benefit of the Certificateholders for the purpose of perfecting such security interest under applicable law (except that nothing in this clause (e) shall cause any person to be deemed to be an agent of the Trustee for any purpose other than for perfection of such downgrading referred to in the definition of Trigger Event ifsecurity interests unless, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent and then only to the Company's delivery or receipt of such written noticeextent, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to expressly appointed and authorized by the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing). The Depositor and the Trustee, recordation of upon directions from the Depositor, shall, to the extent consistent with this Agreement, take such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments term of Mortgages or UCC-3 financing statement at the expense of the Companythis Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfersells, assigntransfers, set-assigns, sets over and otherwise convey conveys to the Trustee on behalf of the Trust for the benefit of the Certificateholders, without recourse (except as provided herein) recourse, all the right, title and interest of the Company Depositor in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, before the Cut-off Date), and the Depositor's rights under the Mortgage Loan Purchase Agreement, including the rights of the Depositor as assignee of the Seller with respect to the Seller's rights under the Servicing Agreement. The Company acknowledges it has sold all rightforegoing sale, title transfer, assignment and interest set over does not and is not intended to result in and to a creation of an assumption by the Trustee of any obligation of the Depositor or any other Person in connection with the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver or any agreement or instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loanrelating thereto, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver Depositor has delivered or caused to be delivered to the Trustee (Trustee, or the Custodian, Custodian on behalf of the Trustee) , for the benefit of the Certificateholders, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The the original Mortgage Note, endorsed by manual or facsimile signature in the following form: "Pay to the order of Wells Fargo Bank, N.A., as trustee for holders of Banc of America Xxxxing Corporation Mortgage Pass-Through Certificates, Series 2005-C, without recourse in blank by the Company, including recourse," with all necessary intervening endorsements showing a complete chain of endorsement from the originator to the Company; providedTrustee (each such endorsement being sufficient to transfer all right, howevertitle and interest of the party so endorsing, as noteholder or assignee thereof, in and to that if such Mortgage Note is Note) and, in the case of any Mortgage Loan originated in the State of New York documented by a Confirmatory NYCEMA, the NYCEMA, the new Mortgage Note, such Confirmatory if applicable, the consolidated Mortgage Note may be payable directly to and the Company or may show a complete chain of endorsement from the named payee to the Companyconsolidated Mortgage;
(ii) Any assumption except as provided below, the original recorded Mortgage with evidence of a recording thereon, or if any such Mortgage has not been returned from the applicable recording office or has been lost, or if such public recording office retains the original recorded Mortgage, a copy of such Mortgage certified by the Servicer (which may be part of a blanket certification) as being a true and modification agreementcorrect copy of the Mortgage;
(iii) Except subject to the provisos at the end of this paragraph, a duly executed Assignment of Mortgage to "Wells Fargo Bank, N.A., as trustee for any the holders of Banc of Amexxxx Funding Corporation Mortgage which has been recorded in the name of MERS or its designeePass-Through Certificates, an assignment in recordable form Series 2005-C" (which may be included in a blanket assignment or assignments) ), together with, except as provided below, originals of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than all interim recorded assignments of such mortgage or a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank copy of such interim assignment certified by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment Servicer (which may be part of a blanket assignment for all Cooperative Loanscertification) as being a true and complete copy of the interest original recorded intervening assignments of Mortgage (each such assignment, when duly and validly completed, to be in recordable form and sufficient to effect the Company in assignment of and transfer to the Security Agreementassignee thereof, under the Mortgage to which the assignment relates); provided that, if the related Mortgage has not been returned from the applicable public recording office, such Assignment of Proprietary Lease Mortgage may exclude the information to be provided by the recording office; and provided, further, if the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any related Mortgage which has been recorded in the name of MERS or its designeeMortgage Electronic Registration Systems, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee Inc. (or the Custodian"MERS") in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment Assignment of the Mortgage in favor of the Trustee shall will be required to be prepared or delivered; delivered and instead, the Company Servicer shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related 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, if any;
(v) any of (A) the original or duplicate original mortgagee title insurance policy and shall provide all riders thereto; (B) a title search showing no lien (other than standard exceptions) on the Mortgaged Property senior to the lien of the Mortgage or (C) an opinion of counsel of the type customarily rendered in the applicable jurisdiction in lieu of a title insurance policy;
(vi) the original of any guarantee executed in connection with the Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a residential long-term lease, a copy of the lease with evidence thereof 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, 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 Custodian).
(3) With Closing Date, with respect to each Designated Loanitem (iii), if an Assignment of Mortgage is required to be recorded as set forth below, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned Depositor has delivered to the Trustee, or the Company shall Custodian on behalf of the Trustee, a copy of such Assignment of Mortgage in blank rather than in the name of the Trustee 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 J attached hereto is a list of all states where recordation is required by any 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 J. 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 (D) the lender's title policy, if any (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 document or documents have not been returned from the applicable public recording office in the case of clause (ii), (iii) or (iv) above, or because the title policy, if any, has not been delivered to any of the Servicer, the Seller or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt Depositor by the Company applicable title insurer in the case of all such documents and instruments for all clause (v) above, the Depositor shall promptly deliver or cause to be delivered to the Trustee, or the Custodian on behalf of the outstanding Mortgage Loans:
Trustee, in the case of clause (1ii), (iii) or (iv) above, such Mortgage, such interim assignment or such assumption, modification, consolidation or extension agreement, as the Mortgage 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 (other than with respect ii), (iii) or (iv) above, there has been a continuing delay at the applicable recording office or, in the case of clause (v) above, 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, or the Custodian on behalf of the Trustee, from time to time (1) additional original documents evidencing an assumption or modification of a Cooperative Loan);
Mortgage Loan and (2) any other documents required to be delivered by the Depositor or the Servicer to the Trustee. In the event that the original Mortgage is not delivered and in connection with the payment in full of the related Mortgage Loan the public recording office requires the presentation of a "lost instruments affidavit and indemnity" or any equivalent document, because only a copy of the title insurance policy Mortgage can be delivered with the instrument of satisfaction or reconveyance, the Depositor 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, the Servicer shall (other than with respect except for any Mortgage which has been recorded in the name of MERS or its designee) (I) cause each Assignment of Mortgage to a Cooperative Loan);
be in proper form for recording in the appropriate public office for real property records within 30 days of the Closing Date and (3II) 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 that as to which the Servicer has been assigned not received the information required to the Companyprepare such assignment in recordable form, the related recorded intervening assignment or assignments Servicer's obligation to do so and to deliver the same for such recording shall be as soon as practicable after receipt of Mortgagesuch information and in any event within 30 days after the receipt thereof; provided, showing however, no recording of an Assignment of Mortgage will be required in a complete chain of assignment from state if either (i) the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery 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 (and ii) the Custodian) shall recordation of an Assignment of Mortgage in such state is not have occurred required by any Rating Agency in order to obtain the initial ratings on or before the first anniversary of Certificates on the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which that have been prepaid in full after as of the Cut-off Date and prior to the date of execution and delivery of this AgreementClosing Date, the CompanyDepositor, in lieu of delivering the above documents to the Trustee, herewith delivers to or the Trustee a certification of a Servicing Officer Custodian on behalf of the nature set forth Trustee, will cause the Servicer to deposit in the Servicer Custodial Account the portion of such payment that is required to be deposited in such Servicer Custodial Account pursuant to Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Funding Corp. 2005-C Trust)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class P Grantor Trust for the benefit of the Class P Certificates. Such assignment includes all interest and principal received by the Company or receivable 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, and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on the Certificates from and after the Cut-Off Date. The transfer and assignment of any Non-Serviced Mortgage Loan to the Trustee and will not deliver any instrument of satisfaction or conveyance with respect the right to a service such Mortgage or a Mortgage Loan, or convey or purport Loans are subject to convey any interest in a Mortgage Loan, except in accordance with the terms and conditions of the intent related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement. With respect to any Pledged Asset , hereby agrees that such Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey Loans remain subject to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect terms of any Pledged Asset each Non-Serviced Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In additionIntercreditor Agreement and, with respect to any CashSaver each Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loaneach Loan Pair Intercreditor Agreement.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee (or the Custodian, on behalf remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee) , the following documents Fiscal Agent, the Paying Agent, any Custodian, the Master Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may Special Servicer shall be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) Depositor to comply with the document delivery requirements of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred Purchase Agreements and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trusteethis Section 2.1(b). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with The applicable Seller shall, at the expense of such Seller as to each of its respective Mortgage Loan transferred Loans, promptly (and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after 45 days following the receipt by the Company of all such documents and instruments thereof) cause to be submitted for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticefiling, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except as appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of "Mortgage File". Each such assignment shall reflect that it should be returned by the Company need not cause public recording office to be so completed and recorded any the Trustee following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, assignment of mortgage which relates to Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall obtain therefrom a Mortgage Loan secured by property in a jurisdiction under certified copy of the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory recorded original. The applicable Seller shall forward copies thereof to the Trustee and satisfactory the Special Servicer. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the applicable Seller shall, pursuant to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such applicable Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided abovePurchase Agreement, the Trustee shall record promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall upon receipt thereof cause the same to be duly recorded or filed such assignment filed, as appropriate. The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or UCC-3 financing statement before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the Primary Servicing Agreement in favor of the Trustee and the Special Servicer to empower the Trustee and, in the event of the failure or incapacity of the Trustee, the Special Servicer, to submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as described in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). The Sellers agree to reasonably cooperate with the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the related Seller's expense, after the periods set forth above; provided, however, the Trustee shall not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the possession of the Depositor or the Sellers that relate to the Mortgage Loans, Serviced Companion Mortgage Loans or B Notes and that are not required to be a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer or the related Primary Servicer on its behalf, on or before the date that is 45 days following the Closing Date and shall be held by the Master Servicer or related Primary Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer or the related Primary Servicer by the related Seller, the Servicer Mortgage File, will include, to the extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the following items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, the insurance policies or certificates (as applicable), the property inspection reports, any financial statements on the property, any escrow analysis, the tax bills, the Appraisal, the environmental report, the engineering report, the asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies. Delivery of any of the foregoing documents to the applicable Primary Servicer (or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the Depositor's obligations under this Section 2.1(d). None of the Master Servicer, the Special Servicer or any Primary Servicer shall have any liability for the absence of any of the foregoing items from the Servicing Mortgage File if such item was not delivered by the related Seller.
(e) In connection with any such recording or filingthe Depositor's assignment pursuant to Section 2.1(a) above, the Company Depositor shall furnish such documents deliver to the Trustee on or before the Closing Date a copy of a fully executed counterpart of each Mortgage Loan Purchase Agreement, as may be reasonably necessary in full force and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall contain the representations and warranties made by the Sellers with respect to accomplish such recording or filingeach related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the Principal Loans from Principal, the Xxxxx Fargo Loans from Xxxxx Fargo, the BSCMI Loans from BSCMI, the JHREF Loans from JHREF and the MSMC Loans from MSMC. Notwithstanding the foregoing, at any time the Company may record or file, The Depositor will deliver or cause to be recorded delivered the original Mortgage Notes (or filedlost note affidavits with copies of the related Mortgage Notes, as described in the definition of "Mortgage File") relating to the Principal Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as described in the definition of "Mortgage File") relating to the Xxxxx Fargo Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as described in the definition of "Mortgage File") relating to the BSCMI Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as described in the definition of "Mortgage File") relating to the MSMC Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as described in the definition of "Mortgage File") relating to the JHREF Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording of multiple assignment documents, Principal, Xxxxx Fargo, BSCMI, JHREF and MSMC, as applicable, are required under the Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages and assignments of Assignments of Leases and assignments of UCC financing statements naming the Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the fact that the assignments shall name the Trustee, on behalf of the Certificateholders, as the assignee, the assignments of Mortgages or UCC-3 financing statement at parties hereto acknowledge and agree that for all purposes the expense Principal Loans shall be deemed to have been transferred from Principal to the Depositor, the Xxxxx Fargo Loans shall be deemed to have been transferred from Xxxxx Fargo to the Depositor, the BSCMI Loans shall be deemed to have been transferred from BSCMI to the Depositor, the JHREF Loans shall be deemed to have been transferred from JHREF to the Depositor and the MSMC Loans shall be deemed to have been transferred from MSMC to the Depositor, and all Mortgage Loans shall be deemed to have been transferred from the Depositor to the Trustee on behalf of the CompanyCertificateholders.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stan Dean Wit Cap Com Mort Ps THR CRTS Ser 2003-Top13)
Conveyance of Mortgage Loans. (a) The CompanySponsor, concurrently with the execution and delivery of this Agreement, does hereby sell, transfer, assign, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company Sponsor in and to the Mortgage LoansLoans and the Mortgage Notes, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, before the Cut-off Off Date). The Company acknowledges it has sold all right) together with the Sponsor's rights under the Seller's Agreement, title the representations and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit warranties of the Certificateholders. The Company agrees that it will take no action inconsistent Seller thereunder together with ownership all rights of the Sponsor to require the Seller to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except Loan in accordance with the terms Seller's Agreement and any proceeds of the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanforegoing.
(b) In connection with such the above transfer and assignment, the Company does Sponsor hereby deliver to the Trustee (or the Custodian, on behalf of deposits with the Trustee) the following documents or instruments , with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
, (i) The the original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) order of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company Trustee and showing an unbroken chain of endorsements from the originator original payee thereof to the CompanyPerson endorsing it to the Trustee, (ii) the original Mortgage, which shall have been recorded, with evidence of such recording indicated thereon, (iii) the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to the Trustee of the Mortgage, with evidence or recording with respect to each Mortgage Loan in the name of the Trustee thereon, (iv) all intervening assignments of the Mortgage, if any, to the extent available to the Sponsor with evidence of recording thereon, (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any, (vi) the original policy of title insurance or mortgagee's certificate of title insurance or commitment or binder for title insurance and (vii) originals of all assumption and modification agreements, if any; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart in lieu of the Proprietary Lease and foregoing, the Assignment of Proprietary Lease executed Sponsor may deliver the following documents, under the circumstances set forth below: (x) in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies lieu of the original UCC-1 financing statementpolicy of title insurance, the Sponsor may deliver a binder or commitment therefor, or, in California, a preliminary title report, or, in Iowa, an attorney's certificate; (y) in lieu of the original Mortgage or intervening assignments thereof or assumption or modification agreements which have been delivered or are being delivered to recording offices for recording and any continuation statementshave not been returned to the Sponsor in time to permit their delivery as specified above, filed the Sponsor may deliver a true copy thereof with a certification by Headlands or the originator title company issuing the commitment for title insurance, on the face of such Cooperative Loan copy, substantially as secured party, each with evidence of recording thereof, evidencing the interest follows: "Certified to be a true and correct copy of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicableoriginal, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee transmitted for recording"; and (or the Custodianz) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording lieu of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or intervening assignments thereof or assumption or modification agreements, if the original has been lost or the Custodianapplicable jurisdiction retains the originals of such documents (as evidenced by a certification from Headlands to such effect) the assignment in Sponsor may deliver photocopies of such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in documents containing an original certification by the name of MERS judicial or its designee, no assignment other governmental authority of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all jurisdiction where such documents were recorded; and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage provided, further, however, that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Off Date and prior to the date of execution and delivery of this AgreementClosing Date, the CompanySponsor, in lieu of delivering the above documents to the Trusteedocuments, herewith delivers may deliver to the Trustee a certification of a Servicing Officer to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the nature set forth in Section 3.09.
Certificate Account on the Closing Date. The Sponsor shall deliver such original documents (d) The Company shall not be required including any original documents as to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iiiwhich certified copies had previously been delivered) or file such certified copies together with the UCC-3 assignments referred to in Section 2.01(b)(2)(ixoriginal title insurance policy (or, if a master title policy has been issued by the title insurer, a mortgagee's certificate of title insurance) if a title insurance binder or commitment or other assurance of title was originally deposited, to the Trustee unless promptly after they are received. The Master Servicer shall cause, at its expense, the Company or Mortgage and intervening assignments, if any, and the Trustee obtains actual notice or knowledge assignment of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers Mortgage to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at not later than 270 days after the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyClosing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Headlands Mortgage Securities Inc)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfersells, assigntransfers, set-assigns, sets over and otherwise convey conveys to the Trustee for the benefit of the Certificateholders, without recourse (except as provided herein) recourse, all the right, title and interest of the Company Depositor in and to the Trust Fund together with all rights assigned by the Loan Seller to the Depositor, pursuant to the Mortgage Loan Purchase Agreement, under the Cendant Mortgage Loan Purchase Agreement and the related Purchase Price and Terms Letter (as defined in the Cendant Mortgage Loan Purchase Agreement) solely with respect to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, of the Cut-off Date). The Company acknowledges it has sold all Loan Seller's right, title and interest in and to the Additional Collateral Assignment Agreement, each Mortgage Loans to the Trustee to the extent provided above 100 Pledge Agreement, each Parent Power(R) Guaranty and that retention of record title of Mortgages (subject to Section 2.01(dSecurity Agreement for Securities Account and each Parent Power(R) of this Agreement) is Guaranty Agreement for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance Real Estate with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the each Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such the transfer and assignmentassignment set forth in clause (a) above, the Company does hereby deliver Depositor has delivered or caused to be delivered to the Trustee (or for the Custodian, on behalf benefit of the Trustee) Certificateholders the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The the original Mortgage Note, Note endorsed without recourse by manual or facsimile signature in blank by in the Company, including following form: "Pay to the order of ___________ without recourse," with all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Person endorsing the Mortgage Note is a Confirmatory (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); or, with respect to any Lost Mortgage Note, such Confirmatory a lost note affidavit from the Transferor stating that the original Mortgage Note may be payable directly to the Company was lost or may show destroyed, together with a complete chain copy of endorsement from the named payee to the Companysuch Mortgage Note;
(ii) Any assumption except as provided below, the original recorded Mortgage or a copy of such Mortgage certified by the Transferor as being a true and modification agreementcomplete copy of the Mortgage;
(iii) Except for any a duly executed assignment of the Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) ), endorsed in the following form: "Wxxxx Fargo Bank Minnesota, N.
A. as Trustee for the MASTR Asset Securitization Trust 2001-1 for the benefit of the Holders of the Mortgage Pass-Though Certificates, Series 2001-1" together with, except as provided below, all interim recorded assignments of such mortgage (each such assignment, when duly and validly completed, to be in recordable form and sufficient to effect the assignment of and transfer to the Trusteeassignee thereof, under the Mortgage to which the assignment relates); and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original provided that, if the related Mortgage Notehas not been returned from the applicable public recording office, endorsed without recourse in blank such assignment of the Mortgage may exclude the information to be provided by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blankrecording office;
(iv) A counterpart the original or copies of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loaneach assumption, modification, written assurance or substitution agreement, if any;
(v) The Security Agreement;
(vi) Copies of except as provided below, the original UCC-1 financing statementor duplicate original lender's title policy and all riders thereto. In the event that in connection with any Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage, and any continuation statements, filed by (b) all interim recorded assignments or (c) the originator lender's title policy (together with all riders thereto) satisfying the requirements of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (viii), (iii) or (v) above, sent to the appropriate public office for filingrespectively, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office in the case of this Agreementclause (ii) or (iii) above, due or because the title policy has not been delivered to a delay either the Servicer or the Depositor by the applicable title insurer in connection with recording the case of the Mortgageclause (v) above, the Company may, in lieu of delivering the completed assignment in recordable form, Depositor shall promptly deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, in the Company shall deliver to case of clause (ii) or (iii) above, such original Mortgage or such interim assignment, as the Trustee (or the Custodian) the following documents or instruments as promptly as practicablecase may be, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) upon receipt thereof from the public recording office, or a copy thereof, certified, if appropriate, by the relevant recording office, but in no event shall any such delivery of the title insurance policy original Mortgage and each such interim assignment or a copy thereof, certified, if appropriate, by the relevant recording office, be made later than one year following the Closing Date, or, in the case of clause (other v) above, no later than with respect 120 days following the Closing Date; provided, however, in the event the Depositor is unable to a Cooperative Loan);
(3) with respect to deliver by such date each Mortgage and each such interim assignment by reason of the fact that any such documents have not been returned by the appropriate recording office, or, in the case of each such interim assignment, because the related Mortgage that has not been assigned to returned by the Companyappropriate recording office, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending Depositor shall deliver such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of as promptly as possible upon receipt thereof and, in any event, within 720 days following the Closing Date. The Company Depositor shall promptly furnish forward or cause to be forwarded to the Trustee (a) from time to time additional original documents evidencing an assumption or modification of a Mortgage Loan and (b) any other documents required to be delivered by the Depositor or the Custodian) Servicer to the documents included Trustee. In the event that the original Mortgage is not delivered and in connection with the payment in full of the related Mortgage Loan and the public recording office requires the presentation of a "lost instruments affidavit and indemnity" or any equivalent document, because only a copy of the Mortgage can be delivered with the instrument of satisfaction or reconveyance, the Servicer shall execute and deliver or cause to be executed and delivered such a document to the public recording office. In the case where a public recording office retains the original recorded Mortgage or in the Document Files (other than any such documents previously delivered case where a Mortgage is lost after recordation in a public recording office, the applicable Transferor shall deliver to the Trustee a copy of such Mortgage certified by such public recording office to be a true and complete copy of the original recorded Mortgage. As promptly as practicable subsequent to such transfer and assignment, and in any event, within thirty (or 30) days thereafter, the CustodianServicer shall (i) cause the Trustee to affix the Trustee's name to each assignment of Mortgage, as originals or copiesthe assignee thereof, (ii) either cause such assignment to be in proper form for recording in the appropriate public office for real property records and (iii) 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 assignments of Mortgage as to which the Servicer has not received the information required to prepare such assignment in recordable form, the Servicer's obligation to do so and to deliver the same for such recording shall be as soon as practicable after receipt of such information and in any event within thirty (30) days after receipt thereof and that the Servicer need not cause to be recorded any assignment which relates to a Mortgage Loan (a) upon the written request of the Trustee Mortgaged Property and Mortgage File relating to which are located in California or (b) when in any other jurisdiction under the Company or laws of which in the Trustee obtains actual notice or knowledge opinion of a Trigger Event. The Trustee shall have no obligation counsel the recordation of such assignment is not necessary to request delivery of protect the Document Files unless a Responsible Officer of Trustee's and the Trustee has actual notice or knowledge of Certificateholders' interest in the occurrence of a Trigger Eventrelated Mortgage Loan. In the case of Mortgage Loans which that have been prepaid in full after as of the Cut-off Date and prior to the date of execution and delivery of this AgreementClosing Date, the CompanyDepositor, in lieu of delivering the above documents to the Trustee, herewith delivers will deposit in the Collection Account the portion of such payment that is required to be deposited in the Trustee a certification of a Servicing Officer of the nature set forth in Collection Account pursuant to Section 3.093.08 hereof.
(dc) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) Depositor does hereby establish, pursuant to the Trustee unless the Company or the Trustee obtains actual notice or knowledge further provisions of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (this Agreement and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of whichthe State of New York, on an express trust (the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause "Trust") to be recorded or filed such assignment or UCC-3 financing statement at known, for convenience, as "MASTR Asset Securitization Trust 2001-1" and Wxxxx Fargo Bank Minnesota, N.A. is hereby appointed as Trustee in accordance with the expense provisions of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companythis Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Master Asset Securitization Trust 2001 1)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class P Grantor Trust for the benefit of the Class P Certificates. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after the Cut-Off Date. The transfer of principal and interest due and payable on the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on or before, the Certificates from and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title transfer and interest in and to the assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to the extent provided above and that retention of record title of Mortgages (service such Mortgage Loans are subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and conditions of the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, setrelated Non-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Serviced Mortgage Loan pursuant to Pooling and Servicing Agreement and the Pledged Asset related Non-Serviced Mortgage Servicing Loan Intercreditor Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver hereby agrees that such Mortgage Loans remain subject to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner terms of the related Non-Serviced Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERSIntercreditor Agreement and, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09related Loan Pair Intercreditor Agreement.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Top23)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;; and
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an An assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a . With respect to each Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company does hereby deliver to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee)Designated Loan Closing Documents. Except for any Mortgage which has been recorded in the name of MERS or its designee, in In instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, within 45 days of the Closing Date the Company does hereby shall deliver to the Trustee either (or the Custodiana) the documents referred to in clauses (i) and (ii) of the second preceding paragraph, provided that if the Company cannot locate such documents in the form initially executed by the Mortgagor and the obligor under any assumption and modification agreement, then it shall use reasonable efforts to obtain, and may deliver, new documents executed by such parties evidencing their obligations under the initial documents or (b) an Opinion of Counsel satisfactory to the Trustee from counsel admitted to practice in the jurisdiction in which the related Mortgaged Property is located to the effect that the absence of the original Mortgage Note or assumption and modification agreement, as the case may be, will not preclude the Company as servicer from initiating or prosecuting to completion any foreclosure proceeding with respect to such Mortgaged Property. If such documents are not so delivered within 45 days of the Closing Date, the Company will use its best reasonable efforts (and the Trustee will have no obligation to inquire as to such efforts) to substitute another Mortgage Loan for such Designated Loan Closing Documents.
(c) on the next succeeding Distribution Date pursuant to Section 2.03(b). If the Company is unable to effect such substitution, it shall repurchase such Designated Loan on such Distribution Date pursuant to Section 2.03(a). In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1i) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan)thereon;
(2ii) a copy of the title insurance policy (other than with respect to a Cooperative Loan);policy; and
(3iii) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1i) and (3iii) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.and
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ge Capital Mortgage Services Inc)
Conveyance of Mortgage Loans. (a) It is the intention of the parties hereto that a common law trust be established pursuant to this Agreement and further such trust be designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5". Wells Fargo Bank, N.A. is hereby appointed, and does hereby agree to acx, xx Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the exclusive use and benefit of all present and future Certificateholders. It is not intended that this Agreement create a partnership or a joint-stock association.
(b) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-sell, set over and otherwise convey to the Trustee Trustee, in trust, without recourse recourse, for the benefit of the Certificateholders (except and for the benefit of the other parties to this Agreement as provided hereintheir respective interests may appear) and, in the case of a Serviced Whole Loan, the related Companion Loan Holder, all the right, title and interest of the Company in Depositor in, to and to the Mortgage Loans, including all interest and principal received by the Company on or with respect to under (i) the Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files, (ii) the Mortgage Loan Purchase and Sale Agreement and (iii) all other assets included or to be included in the Trust Fund. Such assignment includes (i) the Mortgage Loans that from time to time are subject to this Agreement, all interest accrued on the Mortgage Loans on and after the Cut-off Date and all principal payments received on the Mortgage Loans after the Cut-off Date (other than payments of principal and interest payments due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date, which shall belong and be promptly remitted to the Mortgage Loan Seller). The Company acknowledges it has sold , together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired in respect of a Mortgage Loan; (iii) such funds or assets that from time to time are deposited into the Certificate Account, the REMIC I Distribution Account, the REMIC II Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Excess Liquidation Proceeds Account and the REO Account (if established), and (iv) in the case of a Mortgage Loan included in a Whole Loan, all the right, title and interest of the Depositor in, to and under the related Intercreditor Agreement. The conveyance of each Non-Serviced Mortgage Loan, along with the right to service each such Non-Serviced Mortgage Loan is subject to the terms and conditions of the related Non-Serviced Loan Servicing Agreement and the related Intercreditor Agreement. In connection with the transfer and assignment set forth in this Section 2.01, the Depositor shall make a cash deposit to the Certificate Account in an amount equal to the Interest Deposit Amount. This conveyance is subject to the rights of the Sub-Servicers pursuant to the Sub-Servicing Agreements, which rights are subject in any event to this Agreement. Under United States generally accepted accounting principles, the Depositor shall report: (i) its acquisition of the Mortgage Loans from the Mortgage Loan Seller, pursuant to the Mortgage Loan Purchase and to Sale Agreement, as a purchase of such Mortgage Loans from the Mortgage Loan Seller; and (ii) its transfer of the Mortgage Loans to the Trustee Trustee, pursuant to the extent provided above and that retention this Section 2.01(b), as a sale of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the such Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or fileDepositor shall cause all of its records to reflect such acquisition as a purchase and such transfer as a sale (in each case, or cause as opposed to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companya secured loan).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-5)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, as of the Closing Date, and concurrently with the execution and delivery of this Agreementhereof, does hereby assign, transfer, assignsell, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company Depositor in and to the Mortgage Loans, including 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 for the benefit of the Certificateholders. Such assignment includes all principal and interest and principal received by the Company Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby Depositor has requested the Seller pursuant to each Mortgage Loan Purchase Agreement to deliver to the Trustee (or the Custodianto, on behalf of and deposit with the Trustee) , as described in the related Mortgage Loan Purchase Agreement, the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assignedinstruments:
(i) The the original Mortgage Note, endorsed without recourse in blank by to the order of "Bankers Trust Company, including as trustee" with all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly Person endorsing it to the Company or may show a complete chain of endorsement from the named payee to the CompanyTrustee;
(ii) A counterpart the original recorded Mortgage or, if the original Mortgage has not been returned from the applicable public recording office, a copy of the Proprietary Lease Mortgage certified by the Seller to be a true and complete copy of the Assignment of Proprietary Lease executed in blank or original Mortgage submitted to the originator of the Cooperative Loantitle insurance company for recording;
(iii) The related Cooperative Stock Certificatea duly executed original Assignment of the Mortgage in recordable form to "Bankers Trust Company, together with an undated stock power (as trustee" or other similar instrument) executed in blankto "Bankers Trust Company, as trustee for the holders of DLJ Mortgage Acceptance Corp. Mortgage Pass-Through Certificates";
(iv) A counterpart the original recorded Assignment or Assignments of the recognition agreement Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Cooperative Seller to be a true and complete copy of the interests of the mortgagee with respect original Assignment submitted to the related Cooperative Loantitle insurance company for recording;
(v) The Security Agreementthe original lender's title insurance policy, or, if such policy has not been issued and if the Mortgage Loan was funded through a title insurance company pursuant to escrow or closing instructions precluding the title insurance company or other comparable escrow or closing agent from funding until it is prepared to issue the required title insurance coverage, a copy of such escrow or closing instructions;
(vi) Copies of the original UCC-1 financing statementof any assumption, and any continuation statementsmodification, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Leaseextension or guaranty agreement;
(vii) If applicable, copies the original or a copy of the UCC-3 assignments of preliminary title report (or equivalent thereof) on the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary LeaseMortgage Property;
(viii) An if any of the documents or instruments referred to above was executed assignment on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (which may or by an officer of the applicable title insurance or escrow company) to be a blanket assignment for all Cooperative Loans) true and correct copy of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trusteeoriginal; and
(ix) A UCC-3 assignment from with respect to any High Cost Loan, the Company notice to assignees that the Mortgage Loan is subject to special truth in lending rules, to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment extent required by applicable law. The Seller is obligated pursuant to each Mortgage Loan Purchase Agreement to deliver to the Trustee). Except for any Mortgage which has been : (a) either the original recorded Mortgage, or in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form event such original cannot be delivered by the Company Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording Assignments of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgagethereon, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the CompanySeller, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described or in the two preceding sentences are collectively referred to herein event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the "Document File" with respect to each Mortgage Loan.) The Company shall advise appropriate recording office, in those instances where copies thereof certified by the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously Seller were delivered to the Trustee pursuant to clause (or the Custodianiv) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Eventabove. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior Notwithstanding anything to the date of execution and delivery of contrary contained in this AgreementSection 2.01, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company Seller shall be deemed to have knowledge satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof.
01. While such Assignment to be recorded is being recorded, the Trustee shall retain a photocopy of such Assignment. If any Assignment is lost or returned unrecorded to the Trustee because of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligencedefect therein, the Company has Seller is required to prepare a substitute Assignment or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of cure such written noticedefect, as the case may be, and the Company Trustee shall insert the recording cause such Assignment to be recorded in accordance with this paragraph. The Seller is required under each Mortgage Loan Purchase Agreement to exercise its best reasonable efforts to deliver or filing information in the assignments of the Mortgages or UCC-3 assignments cause to be delivered to the Trustee and shall cause within 120 days of the same to be recorded Closing Date, or filed, at the Company's expense, such other date as is set forth in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a such Mortgage Loan secured by property in Purchase Agreement, the original or a jurisdiction under photocopy of the laws title insurance policy with respect to each of whichthe related Mortgage Loan, on the basis of an Opinion of Counsel reasonably satisfactory assigned to the Trustee pursuant to this Section 2.01. All original documents relating to the Mortgage Loans which are not delivered to the Trustee, to the extent delivered by the Seller to the Master Servicer, are and satisfactory to each Rating Agency (as evidenced shall be held by the Master Servicer in writing), recordation trust for the benefit of such assignment is not necessary to protect the Trustee against discharge on behalf of such the Certificateholders. Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loan Loans by the Company or any valid assertion that any Person other than Depositor to the Trustee has title as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or any rights other obligation of the Depositor. However, in such Mortgage Loan. In the event that the Company fails Mortgage Loans are held to be property of the Depositor, or refuses if for any reason this Agreement is held or deemed to record or file the assignment of Mortgages or UCC-3 financing statement create a security interest in the circumstances 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 abovefor in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by the Seller to the Depositor pursuant to the related Mortgage Loan Purchase Agreements or granted by DLJMCI to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall record or cause be deemed to be recorded "possession by the secured party" or filed possession by a purchaser or a person designated by such assignment secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or UCC-3 financing statement 8-321 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee at the expense of Depositor's direction shall, to the Company. In connection extent consistent with any this Agreement, take such recording or filing, the Company shall furnish such documents actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments of Mortgages or UCC-3 financing statement at the expense term of the CompanyAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp Mort Pass THR Cert Ser 1995 Q10)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfersells, assigntransfers, set-assigns, sets over and otherwise convey conveys to the Trustee in trust for the benefit of the Certificateholders, without recourse recourse, all (except as provided hereini) all the right, title and interest of the Company Depositor (which does not include servicing rights) in and to the each Mortgage LoansLoan, including all interest and principal received by the Company or receivable on or with respect to such Mortgage Loans after the Cut-off Date and all interest and principal payments on the Mortgage Loans (other than received prior to the Cut-off Date in respect of installments of interest and principal due thereafter, but not including payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date (other than the rights of the Servicer to service the Mortgage Loans in accordance with this Agreement), (ii) the Depositor's rights under the Assignment Agreement and (iii) all proceeds of any of the foregoing. In addition, on or prior to the Closing Date, the Depositor shall cause the Mortgage Pool Insurer to deliver the Mortgage Pool Insurance Policies to the Trustee.
(b) In connection with the transfer and assignment set forth in clause (a) above, the Depositor has delivered or caused to be delivered to the Trustee or its designated agent, the Custodian, for the benefit of the Certificateholders, the documents and instruments with respect to each Mortgage Loan as assigned:
(i) the original Mortgage Note of the Mortgagor in the name of the Trustee or endorsed "Pay to the order of ________________ without recourse" and signed in the name of the last named endorsee by an authorized officer, together with all intervening endorsements showing a complete chain of endorsements from the originator of the related Mortgage Loan to the last endorsee or with respect to any Lost Mortgage Note (as such term is defined in the Pooling and Servicing Agreement), a lost note affidavit stating that the original Mortgage Note was lost or destroyed, together with a copy of such Mortgage Note;
(ii) the original Mortgage bearing evidence that such instruments have been recorded in the appropriate jurisdiction where the Mortgaged Property is located as determined by DLJMC (or, in lieu of the original of the Mortgage or the assignment thereof, a duplicate or conformed copy of the Mortgage or the instrument of assignment, if any, together with a certificate of receipt from the Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy or copies represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same;
(iii) the original Assignment of Mortgage, in blank, which assignment appears to be in form and substance acceptable for recording and, in the event that the related Seller acquired the Mortgage Loan in a merger, the assignment must be by "[Seller], successor by merger to [name of predecessor]", and in the event that the Mortgage Loan was acquired or originated by the related Seller while doing business under another name, the assignment must be by "[Seller], formerly known as [previous name]";
(iv) the originals of all intervening Assignments of Mortgage not included in (iii) above showing a complete chain of assignment from the originator of such Mortgage Loan to the Person assigning the Mortgage to the Trustee, including any warehousing assignment, with evidence of recording on each such Assignment of Mortgage (or, in lieu of the original of any such intervening assignment, a duplicate or conformed copy of such intervening assignment together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy or copies represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same;
(v) an original of any related security agreement (if such item is a document separate from the Mortgage) and the originals of any intervening assignments thereof showing a complete chain of assignment from the originator of the related Mortgage Loan to the last assignee;
(vi) an original assignment of any related security agreement (if such item is a document separate from the Mortgage) executed by the last assignee in blank;
(vii) the originals of any assumption, modification, extension or guaranty agreement with evidence of recording thereon, if applicable (or, in lieu of the original of any such agreement, a duplicate or conformed copy of such agreement together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy(ies) represent true and correct copy(ies) of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located), or a certification or receipt of the recording authority evidencing the same;
(viii) if the Mortgage Note or Mortgage or any other document or instrument relating to the Mortgage Loan has been signed by a person on behalf of the Mortgagor, the original power of attorney or other instrument that authorized and empowered such person to sign bearing evidence that such instrument has been recorded, if so required, in the appropriate jurisdiction where the Mortgaged Property is located as determined by DLJMC (or, in lieu thereof, a duplicate or conformed copy of such instrument, together with a certificate of receipt from the related Seller or the settlement agent who handled the closing of the Mortgage Loan, certifying that such copy(ies) represent true and complete copy(ies)of the original(s) and that such original(s) have been or are currently submitted to be recorded in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located) or a certification or receipt of the recording authority evidencing the same; and
(ix) in the case of the First Mortgage Loans, the original mortgage title insurance policy, or if such mortgage title insurance policy has not yet been issued, an original or copy of a marked-up written commitment or a pro forma title insurance policy marked as binding and countersigned by the title insurance company or its authorized agent either on its face or by an acknowledged closing instruction or escrow letter. In the event the Seller delivers to the Trustee certified copies of any document or instrument set forth in 2.01(b) because of a delay caused by the public recording office in returning any recorded document, the Seller shall deliver to the Trustee, within 60 days of the Closing Date, an Officer's Certificate which shall (i) identify the recorded document, (ii) state that the recorded document has not been delivered to the Trustee due solely to a delay caused by the public recording office, and (iii) state the amount of time generally required by the applicable recording office to record and return a document submitted for recordation. In the event that in connection with any Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim recorded assignments or (c) the lender's title policy (together with all riders thereto) satisfying the requirements set forth above, concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office in the case of clause (a) or (b) above, or because the title policy has not been delivered to the Seller or the Depositor by the applicable title insurer in the case of clause (c) above, the Depositor shall promptly deliver to the Trustee, in the case of clause (a) or (b) above, such original Mortgage or such interim assignment, as the case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office, or a copy thereof, certified, if appropriate, by the relevant recording office and in the case of clause (c) above, if such lender's title policy is received by the Depositor, upon receipt thereof. As promptly as practicable subsequent to such transfer and assignment, and in any event, within thirty (30) days thereafter, the Trustee shall (at the Seller's expense) (i) affix the Trustee's name to each Assignment of Mortgage, as the assignee thereof, (ii) cause such assignment to be in proper form for recording in the appropriate public office for real property records within thirty (30) days after receipt thereof and (iii) cause to be delivered for recording in the appropriate public office for real property records the assignments of the Mortgages to the Trustee, except that, with respect to any assignment of a Mortgage as to which the Trustee has not received the information required to prepare such assignment in recordable form, the Trustee's obligation to do so and to deliver the same for such recording shall be as soon as practicable after receipt of such information and in any event within thirty (30) days after the receipt thereof, and the Trustee need not cause to be recorded (a) any assignment referred to in clause (iii) above which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered to the Trustee (at the Depositor's expense, provided such expense has been previously approved by the Depositor in writing) within 20 days of the Closing Date, acceptable to the Rating Agencies, the recordation of such assignment is not necessary to protect the Trustee's and the Certificateholders' interest in the related 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 by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Company acknowledges Depositor further agrees that it has sold will not, and will not permit either Servicer to, and the Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(c) The Trustee is authorized to appoint any bank or trust company approved by the Depositor as Custodian of the documents or instruments referred to in this Section 2.01, and to enter into a Custodial Agreement for such purpose and any documents delivered thereunder shall be delivered to the Custodian and any Officer's Certificates delivered with respect thereto shall be delivered to the Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section 2.01 be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee. It is, further, not the intention of the parties to this Agreement that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties to this Agreement, the Mortgage Loans are held to be the property of the Depositor, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans then (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; (b) the conveyance provided for in this Section 2.01 shall be deemed to be a grant by the Depositor to the Trustee for the benefit of the Certificateholders of a security interest in all of the Depositor's right, title and interest in and to the Mortgage Loans and all amounts payable to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership holders of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms thereof and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf all proceeds of the Trustee) conversion, voluntary or involuntary, of the following documents foregoing into cash, instruments, securities or instruments with respect to:
(1) Each Mortgage Loan (other property, including without limitation all amounts, other than any Cooperative Loan investment earnings, from time to time held or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded invested in the name Certificate Account, whether in the form of MERS or its designeecash, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Noteinstruments, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (securities or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trusteeproperty; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt possession by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any Custodian of such events shall give the items of property and such other party (and the Custodianitems of property as constitute instruments, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event)money, the Company negotiable documents or chattel paper shall be deemed to have knowledge be "in possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the New York Uniform Commercial Code; 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 benefit of the Certificateholders for the purpose of perfecting such security interest under applicable law (except that nothing in this clause (e) shall cause any person to be deemed to be an agent of the Trustee for any purpose other than for perfection of such downgrading referred to in the definition of Trigger Event ifsecurity interests unless, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent and then only to the Company's delivery or receipt of such written noticeextent, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to expressly appointed and authorized by the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing). The Depositor and the Trustee, recordation of upon directions from the Depositor, shall, to the extent consistent with this Agreement, take such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments term of Mortgages or UCC-3 financing statement at the expense of the Companythis Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Home Eq Mort PSS THR CRT Ser 2003-Ffa)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan (other than the right to receive any Retained Interest) identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Collection Account and all amounts from time to time credited to and to the proceeds of the Collection Account, the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) the Depositor’s security interest in the Additional Collateral; (vi) all proceeds of any of the foregoing; and (vii) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor or the Master Servicer after the Cut-Off Date with respect to the Mortgage Loans. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreements to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and the Seller under the Servicing Agreements as if, for such purpose, it were the Depositor or the Seller, as applicable. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (of any obligation of the Depositor, the Seller or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as provided specifically set forth herein) all the right. In addition, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Additional Collateral Mortgage Loan, the Company Depositor does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Additional Collateral Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Additional Collateral Mortgage Loan pursuant to the Pledged Asset Mortgage related Servicing Agreement, and (iv) its rights as beneficiary under the Certificate Guaranty Surety Bond related in respect of any Pledged Asset Additional Collateral Mortgage LoanLoans conveyed to the Seller from MSDWCC. In additionFor purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. C. § 2701A, et seq. (the “Securitization Act”), each of the parties hereto hereby agrees that:
(i) any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the Depositor;
(ii) none of the Depositor, its creditors or, in any insolvency proceeding with respect to any CashSaver Mortgage Loanthe Depositor or the Depositor’s property, the Company does hereby transfera bankruptcy trustee, assignreceiver, set-over and otherwise convey debtor, debtor in possession or similar person, to the Trustee without recourse extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as provided herein) property of the Depositor any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to including the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and Assignment);
(iii) its right in the event of a bankruptcy, receivership or other insolvency proceeding with respect to receive payments in respect the Depositor or the Depositor’s property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of any CashSaver Mortgage Loan.the Depositor’s property, assets, rights or estate; and
(biv) the transaction contemplated by this Agreement shall constitute a “securitzation transaction” as such term is used in the Securitization Act. In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(iv) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the following form: “Pay to the order of Deutsche Bank National Trust Company, including all intervening endorsements showing as Trustee for Xxxxxxxxx Mortgage Securities Trust 2002-3, without recourse”, or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a complete chain copy of endorsement from the originator to the Companyrelated mortgage note; provided, however, that if such Mortgage substitutions of Lost Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except Affidavits for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note Notes may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee occur only with respect to Mortgage Loans the related Cooperative Loan;
(v) The Security Agreementaggregate Cut-Off Date Principal Balance of which is less than or equal to 2% of the Cut-Off Date Aggregate Principal Balance;
(vi) Copies the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary LeaseTrust;
(vii) If applicableexcept as provided below, copies for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, and in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the UCC-3 assignments MIN for that Mortgage Loan and either language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment to MERS, in each case 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, together with an Officer’s Certificate of the security interest described in clause (vi) above, sent Seller certifying that the copy of such Mortgage delivered to the appropriate public office for filing, showing an unbroken chain Trustee (or its Custodian) is a true copy and that the original of title from the originator such Mortgage has been forwarded to the Companypublic recording office, evidencing or, in the security interest case of a Mortgage that has been lost, a copy thereof (certified as provided for under the laws of the originator appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee and the Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in the Cooperative Stock and the Proprietary LeaseMortgage Loan;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) the original of the interest of the Company in the Security Agreementeach assumption, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) abovemodification or substitution agreement, showing an unbroken chain of title from the originator if any, relating to the Trustee; and
(ix) A UCC-3 assignment from the Company Mortgage Loans, or, as to the Trustee of the security interest described in clause (vi) aboveany assumption, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (modification or substitution agreement which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered on or prior to the Closing Date because of a delay caused by the Company public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer’s Certificate of the Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its custodian) on behalf of the CustodianTrust is a true copy and that the original of such agreement has been forwarded to the public recording office;
(ix) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery case of this Agreementeach Mortgage Loan that is not a MERS Mortgage Loan, due to a delay in connection with recording an original Assignment of the Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned to “Deutsche Bank National Trust Company, as Trustee for Xxxxxxxxx Mortgage Securities Trust 2002-3, without recourse”;
(x) in the Company maycase of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in lieu the case of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any an intervening Assignment of Mortgage that has been recorded lost, a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee that such original intervening Assignment of Mortgage is not required to enforce the Trustee’s interest in the name Mortgage Loans;
(xi) the original Primary Insurance Policy, if any, or certificate, if any;
(xii) the original or a certified copy of MERS lender’s title insurance policy;
(xiii) the original or its designeecopies of each assumption, no modification, written assurance or substitution agreement, if any; and
(xiv) with respect to any Cooperative Loan, the Cooperative Loan Documents. In connection with the assignment of any MERS Mortgage Loan, the Mortgage in favor Seller agrees that it will take (or shall cause the applicable Servicer to take), at the expense of the Trustee shall be required to be prepared or delivered; insteadSeller (with the cooperation of the Depositor, the Company shall take all Trustee and the Master Servicer), such actions as are necessary to cause the Trust Fund MERS® System to be shown as indicate that such Mortgage Loans have been assigned by the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the Custodian).
(case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans of the Xxxxxxxxx Mortgage Securities Trust 2002-3) . With respect to each Designated LoanCooperative Loan the Seller, on behalf of the Company Depositor does hereby deliver to the Trustee the related Cooperative Loan Documents and the Seller will take (or shall cause the Custodianapplicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer) such actions as are necessary under applicable law (including but not limited to the Designated Loan Closing Documents.
(crelevant UCC) In connection in order to perfect the interest of the Trustee in the related Mortgaged Property. Assignments of each Mortgage with respect to each Mortgage Loan transferred that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and assigned not at the expense of the Trust or the Trustee) acceptable to the Trustee, the Company Rating Agencies and the Master Servicer, recording in such states is not required to protect the Trust’s interest in the related Mortgage Loans; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall deliver to be submitted for recording by the Trustee Seller (or the Custodian) Seller will cause the following documents or instruments as promptly as practicableapplicable Servicer to submit each such assignment for recording), but in any event within 30 days, after receipt by at the Company of all such documents cost and instruments for all expense of the outstanding Mortgage Loans:
Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Mortgage Loan that has been assigned is not a MERS Mortgage Loan. The Trustee agrees to execute and deliver to the CompanyDepositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the related filed intervening UCC-3 financing statements (form attached as Exhibit G-4 hereto. If the original lender’s title insurance policy, or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(viii) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) Trustee, promptly upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge receipt thereof, any other documents constituting a part of a Trigger EventMortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of For Mortgage Loans which (if any) that have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this AgreementClosing Date, the CompanySeller, in lieu of delivering the above documents to the Trusteedocuments, herewith delivers to the Trustee a certification of a Servicing Officer Trustee, or to the Custodian on behalf of the nature set forth Trustee, an Officer’s Certificate which shall include a statement to the effect that all amounts received in Section 3.09.
(d) The Company shall not be connection with such prepayment that are required to record be deposited in the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) Distribution Account have been so deposited. All original documents that are not delivered to the Trustee unless on behalf of the Company Trust shall be held by the Master Servicer or the Trustee obtains actual notice or knowledge applicable Servicer in trust for the Trustee, for the benefit of the occurrence Trust and the Certificateholders. Upon discovery or receipt of notice of any Trigger Event; providedmaterially defective document in, howeveror that a document is missing from, that a Mortgage File, the Seller shall have 90 days to cure such recording defect or filing deliver such missing document to the Trustee. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall not be required if the Company either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03 hereof. The Depositor herewith delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings an executed copy of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyPurchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc)
Conveyance of Mortgage Loans. (a) The Company, as of the Closing Date, and concurrently with the execution and delivery of this Agreementhereof, does hereby assign, transfer, assignsell, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage LoansLoans 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 for the benefit of the Certificateholders, including the amount to be deposited by or on behalf of the Company into the Net WAC Shortfall Reserve Fund. Such assignment includes all principal and interest and principal received by the Company Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date). The Company Trustee is hereby authorized and directed to enter into the Yield Maintenance Agreement. The Master Servicer hereby acknowledges the receipt by it has sold all rightof cash in an amount equal to $5,000 (the "Special Deposit"), title and representing interest in and to at the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian Rate, for the Trustee calendar month of February 2004, for benefit of the Certificateholdersthose Mortgage Loans which do not have Monthly Payments due on March 1, 2004. The Company agrees that it will take no action inconsistent with ownership of Master Servicer shall hold such amount in the Mortgage Loans by Custodial Account and shall include such amount in the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest Available Distribution Amount for the Distribution Date in a Mortgage Loan, except in accordance with the terms and the intent of this AgreementMarch 2004. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby has caused the Seller to deliver to the Trustee (or the Custodianto, on behalf of and deposit with the Trustee) , as described in the Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan, the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assignedinstruments:
(i) The the original Mortgage Note, Note endorsed without recourse in blank by the recourse, "Deutsche Bank National Trust Company, including as trustee under the Pooling and Servicing Agreement relating to Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2004-1" with all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; providedPerson endorsing it to the Trustee or, however, that if such with respect to any Mortgage Loan as to which the original Mortgage Note is has been permanently lost or destroyed and has not been replaced, a Confirmatory Mortgage Note, such Confirmatory Mortgage Lost Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the CompanyAffidavit;
(ii) A counterpart the original recorded Mortgage, noting the presence of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator MIN of the Cooperative 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 indicated thereon or, if the original Mortgage has not been returned from the public recording office, a copy of the Mortgage certified by the Seller or the public recording office in which such Mortgage has been recorded to be a true and complete copy of the original Mortgage submitted for recording;
(iii) The related Cooperative Stock Certificateunless the Mortgage Loan is registered on the MERS(R) System, together with an undated stock power (a duly executed original Assignment of the Mortgage, without recourse, in recordable form to Deutsche Bank National Trust Company, as trustee," or other similar instrument) executed in blankto "Deutsche Bank National Trust Company, as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2004-1";
(iv) A counterpart the original recorded Assignment or Assignments of the recognition agreement Mortgage showing an unbroken chain of assignment 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) or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Cooperative Seller to be a true and complete copy of the interests of the mortgagee with respect original Assignment submitted to the related Cooperative Loantitle insurance company for recording;
(v) The Security Agreementthe original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) Copies a copy of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;related hazard insurance policy; and
(vii) If applicablea true and correct copy of any assumption, copies of the UCC-3 assignments of the security interest modification, consolidation or substitution agreement. The Seller is obligated as described in clause (vi) abovethe Mortgage Loan Purchase Agreement, sent with respect to the appropriate public office for filingMortgage Loans, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator deliver to the Trustee; and
: (ixa) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding either the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded Mortgage, or in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form event such original cannot be delivered by the Company Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording Assignments of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgagethereon, showing a complete an unbroken chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the CompanySeller, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described or in the two preceding sentences are collectively referred to herein event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the "Document File" with respect to each Mortgage Loan.) The Company shall advise appropriate recording office, in those instances where copies thereof certified by the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously Seller were delivered to the Trustee pursuant to clause (or the Custodianiv) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Eventabove. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior However, pursuant to the date of execution and delivery of this Mortgage Loan Purchase Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company Seller need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a any jurisdiction under the laws of which, on the basis of as evidenced by an Opinion of Counsel reasonably satisfactory delivered by the Seller to the Trustee and satisfactory to each the Rating Agency (as evidenced in writing)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 Seller in the manner described above, at no expense to the Trust or the Trustee, upon the earliest to occur of: (i) direction by the Holders of Certificates evidencing at least 25% of the Voting Rights, (ii) the occurrence of a Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one assignment, 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 Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee against discharge of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Trustee because of any defect therein, the Seller is required, as described in the Mortgage Loan Purchase Agreement, to prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this section. The Seller is required as described in the Mortgage Loan Purchase Agreement, with respect to the Mortgage Loans, to exercise its best reasonable efforts to deliver or cause to be delivered to the Trustee within 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Trustee pursuant to this Section 2.01. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Seller further agrees that it will cause, at the Seller's own expense, as of the Closing Date, the MERS(R) System to indicate that such Mortgage Loans have been assigned by the Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Company further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. All original documents relating to the Mortgage Loans which are not delivered to the Trustee are and shall be held by the Master Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. Except as may otherwise expressly be provided herein, none of the Company, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Company or any valid assertion that any Person other than to the Trustee has title 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 conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or any rights other obligation of the Company. However, in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause Mortgage Loans are held to be recorded or filed such assignment or UCC-3 financing statement at the expense property of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause 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 recorded or filed, a security agreement within the assignments meaning of Mortgages or UCC-3 financing statement at the expense Articles 8 and 9 of the Company.New York Uniform Commercial Code and the Uniform Commercial Code of any other
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp Mortgage Pass THR Cert Ser 2004-1)
Conveyance of Mortgage Loans. (a) The Company, concurrently ---------------------------- with the execution and delivery of this Agreementhereof, does hereby sell, transfer, assign, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by due after the Company Cut-off Date on or with respect to the Mortgage Loans (other than it being understood that payments of principal and interest first due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date shall not be conveyed to the Trustee pursuant hereto), and each Mortgage 100 Pledge Agreement and each Parent Power Agreement. The foregoing sale, transfer, assignment, set over and conveyance of each Parent Power Agreement that is a Parent Power Guaranty Agreement for Real Estate does not constitute and is not intended to result in an assumption by the Trustee or the Trust Fund of any obligation or liability of MLCC under the related Equity Access(Registered Trademark) Account (as defined in such Parent Power Agreement). MLCC is authorized to correct any error in any Mortgage 100 Pledge Agreement or Parent Power Agreement and to terminate any such agreement and release the related collateral in accordance with the terms thereof. In connection with such assignment, within 21 days after the Closing Date, the Master Servicer, on behalf of the Company, shall deliver to, and deposit with, the Custodian the following documents or instruments with respect to each Mortgage Loan so assigned (the requirements for a Mortgage Loan secured by shares in a cooperative corporation are separately specified in clause (vi)):
(i) Original Mortgage Note endorsed (by facsimile signature if so authorized by the Mortgage Loan Seller), "Pay to the order of Bankers Trust Company of California, N.A., as trustee, under that certain Pool- ing and Servicing Agreement dated as of ______ 1, 199_, for Mortgage Loan Asset Backed Pass-Through Certificates, Series 199_-_ (MLCC Mortgage Investors, Inc., Seller) without recourse" and signed in the name of the Mortgage Loan Seller by an authorized officer;
(ii) Original recorded Mortgage, or if such original has been delivered to the appropriate recorder's office for recording, a certified copy thereof certified true and complete by the Mortgage Loan Seller or the escrow agent acting in connection with the origination of the Mortgage Loan, with the original to be delivered within 180 days of the Closing Date;
(iii) Original Assignment of Mortgage in recordable form to "Bankers Trust Company of California, N.A., as trustee, under that certain Pooling and Servicing Agreement dated as of ______ 1, 199_, for Mortgage Loan Asset Backed Pass-Through Certificates, Series 199_-_", executed by an authorized signatory of the Mortgage Loan Seller. Subject to the foregoing, such assignments may, if permitted by law, be in the form of blanket assignments for Mortgage Loans covering Mortgaged Properties situated within the same county. If the Assignment of Mortgage is in blanket form, a copy of the Assignment of Mortgage shall be included in the individual Mortgage File;
(iv) Originals of all assumption and modification agreements, if any;
(v) Original policies of title insurance, or if the original policy of title insurance is unavailable, a copy of the preliminary title report, with the original title policy to be delivered within 150 days of the Closing Date. The policy must affirmatively insure ingress and egress and insure against encroachments by or upon the Mortgaged Property or any interest therein; and
(vi) With respect to those Mortgage Loans which are cooperative loans, the original Mortgage Note, endorsed (by facsimile signature if so authorized by the Mortgage Loan Seller), "Pay to the order of Bankers Trust Company of California, N.A., as trustee, under that certain Pool- ing and Servicing Agreement dated as of ______ 1, 199_, for Mortgage Loan Asset Backed Pass-Through Certificates, Series 199_-_ (MLCC Mortgage Investors, Inc., Seller) without recourse" and signed in the name of the Mortgage Loan Seller by an authorized officer; the original stock certificate and related stock power executed by the obligor in blank; the original loan security agreement and the assignment of the note and loan security agreement, if applicable, assigned to "Bankers Trust Company of California, N.A. as trustee under that certain Pooling and Servicing Agreement dated as of ______ 1, 199_ for Mortgage Loan Asset Backed Pass-Through Certificates, Series 199_-_"; the original proprietary lease and the assignment of the proprietary lease, if applicable, executed by the obligor in blank; and any financing statements relating thereto; provided that the Master Servicer shall deliver at least 50% of the Mortgage Notes on or before the Closing Date. If in connection with any Mortgage Loan the Master Servicer cannot deliver the Mortgage with evidence of recording thereon as provided above, or within the 180 days permitted in (ii) above, solely because of a delay caused by the public recording office to which such Mortgage has been delivered for recordation, the Master Servicer shall deliver or cause to be delivered to the Custodian an Officer's Certificate of the Master Servicer, stating that such mortgage has been delivered to the appropriate public recording official for recordation. The Master Servicer shall promptly deliver or cause to be delivered to the Custodian such Mortgage with evidence of recording indicated thereon upon receipt thereof from the public recording official. Notwith- standing the above, the Master Servicer shall use all reasonable efforts to cause each original Mortgage with evidence of recording thereon to be delivered to the Custodian within 270 days of the Closing Date. With respect to any Additional Collateral Mortgage Loan in respect of which there has been filed a UCC-1 financing statement in favor of MLCC as secured party, the Master Servicer shall, within 180 days after the Closing Date, 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 and shall thereafter cause the filing of all necessary continuation statements. If the long-term unsecured debt of Merrill Lynch & Co., Inc., xx xt xx xated by Moody's, is rated below X0 xx xf it is rated by Standard & Poor's, is rated below A-, or an Event of Default shall have occurred and is continuing or if MLCC is no longer the Master Servicer (unless each Rating Agency confirms that the absence of recordation will not result in the reduction or withdrawal of its rating of the Class A Certificates), then MLCC (or the successor Master Servicer in the case of an Event of Default) shall, within 60 days after such occurrence (unless the long-term unsecured debt of Merrill Lynch & Co., Inc., xx ix xx rated by Standard & Poor's, is rated below BBB-, in which case MLCC will have 30 days after such occurrence), cause to be sent for recording to the appropriate public recording office for real property records each Assignment of Mortgage referred to in this Section 2.01 except for Mortgage Loans on Mortgaged Properties located in states where, as evidenced by an opinion of independent counsel acceptable to the Trustee, the Certificate Insurer, the Surety, the Company and the Rating Agencies, such recording is not required to protect the interests of the Trustee in the Mortgage Loan, including the related Mortgage, against the claim of any other transferee or any successor to or creditor of the Mortgage Loan Seller or the Originator of such Mortgage Loan. While each Assignment of Mortgage required to be recorded is being recorded, the Master Servicer shall leave with the Custodian a photocopy of such Assignment of Mortgage. If any such Assignment of Mortgage is returned unrecorded to the Master Servicer because of any defect therein, the Master Servicer shall cause such defect to be cured and such Assignment of Mortgage to be recorded in accordance with this paragraph. The Master Servicer shall deliver or cause to be delivered each original recorded Assignment of Mortgage and intermediate assignment to the Custodian within 120 days of the occurrence giving rise to the obligation to record or shall deliver to the Custodian on or before such date an Officer's Certificate stating that such Assignment of Mortgage has been delivered to the appropriate public recording office for recordation, but has not been returned solely because of a delay caused by such recording office. If the Master Servicer cannot cause any Mortgage or Assignment of Mortgage or intermediate assignments, subject to the provisions in this Section 2.01 regarding recording office delays, to be recorded and evidence of such recording delivered to the Custodian within 270 days of the occurrence giving rise to the obligation to record, the Mortgage Loan Seller shall be required to purchase such Mortgage Loan from the Trustee at the Purchase Price or the Mortgage Loan Seller shall be required to substitute another Mortgage Loan for such deficient Mortgage Loan in accordance with the procedures and subject to the limitations set forth in Section 3.02(i) through (viii), such repurchase or substitution obligation constituting the sole remedy available to the Trustee, the Certificateholders, the Certificate Insurer and the Surety for failure of a Mortgage Loan to be recorded. The ownership of each Mortgage Note, the Mortgage and the contents of the related Mortgage File is vested in the Trustee. Mortgage documents relating to the Mortgage Loan not delivered to the Trustee or the Custodian under the Custodial Agreement are and shall be held in trust by the Master Servicer or any Sub-Servicer, for the benefit of the Trustee as the owner thereof and the Master Servicer's or such Sub-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 Master Servicer or such Sub-Servicer is in a custodial capacity only. The Company acknowledges it has 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 all and to claim no ownership interest in the Mortgage Loans. It is the intention of this Agreement that the conveyance of the Company's right, title and interest in and to the Mortgage Loans Trust Fund pursuant to this Agreement shall constitute a purchase and sale and not a loan. If the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership conveyance of the Mortgage Loans by from the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant Seller to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) aboveis characterized as a pledge and not a sale, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge transferred to the Trustee, in addition to the Trust Fund, all of the Company's right, title and interest in, to and under the obligation deemed to be secured by said pledge; and it is the intention of this Agreement that the Mortgage Loan Seller and the Company shall also be deemed to have granted to the Trustee a first priority security interest in all of the Mortgage Loan Seller's and the Company's right, title, and interest in, to, and under the obligation deemed to be secured by said pledge and that the Trustee and the Custodian shall be deemed to be an independent custodian for purposes of perfection of such security interest. If the conveyance of the Mortgage Loans from the Company to the Trustee is characterized as a pledge, it is the intention of this Agreement that this Agreement shall constitute a security agreement under applicable law, and that the Mortgage Loan Seller and the Company shall be deemed to have granted to the Trustee a first priority security interest in all of Mortgage Loan Seller's and the Company'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 downgrading referred Person. In addition to the conveyance made in the definition first paragraph of Trigger Event if, in the exercise of reasonable diligencethis Section 2.01, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticedoes hereby convey, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments assign and set over to the Trustee all of its right, title and shall cause interest in that portion of the same to be recorded or filed, at Trust Fund described in items (ii) through (ix) of the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed definition thereof and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory further assigns to the Trustee for the benefit of the Certificateholders, the Certificate Insurer and satisfactory to each Rating Agency (as evidenced in writing), recordation the Surety those representations and warranties of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement Seller contained in the circumstances provided above, Sale Agreement and described in Section 3.01 hereof and the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense benefit of the Company. In connection with any such recording or filing, remedies for the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companybreach thereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
Conveyance of Mortgage Loans. (a) The CompanyIn consideration of the Issuer's delivery of the Notes and the Trust Certificate to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set-over set over, deposit with and otherwise convey to the Trustee Issuer, without recourse (except as provided herein) recourse, subject to Sections 2.02, 2.03, 3.03 and 3.04, in trust, all the right, title and interest of the Company Depositor in and to the Mortgage LoansTrust Estate. The Indenture Trustee declares that, including all interest subject to the review provided for in Section 2.02, it has received and principal received shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement and the Indenture. Concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Company on Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) .
(i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Additional Collateral Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Additional Collateral Mortgage Loan pursuant to the Pledged Asset Mortgage related Servicing Agreement, Agreement and (iv) its rights as beneficiary under the Guaranty Surety Bond related in respect of any Pledged Asset Additional Collateral Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey Loans conveyed to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) Seller from Cendant. In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01, to, and deposit with the Indenture Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana "Mortgage File") so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse (other than for a MOM Loan) either on its face or by allonge attached thereto in blank by or in the following form: "Pay to the order of Deutsche Bank National Trust Company, including all intervening endorsements showing as Indenture Trustee for Thornburg Mortgage Securities Trust 2003-6, withoux xxxxxxxe", or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a complete chain copy of endorsement from the originator to the Companyrelated mortgage note; provided, however, that if such substitutions of Lost Note Affidavits for original Mortgage Note Notes may occur only with respect to Mortgage Loans the aggregate related Cut-Off Date Balance of which is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly less than or equal to 2% of the Company or may show a complete chain of endorsement from the named payee to the CompanyCut-Off Date Balance;
(ii) Any assumption the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and modification agreementexecuted in connection with the Mortgage Note, assigned to the Indenture Trustee on behalf of the Issuer;
(iii) Except except as provided below, for any each Mortgage which has been recorded Loan that is not a MERS Mortgage Loan, the original Mortgage, and in the name case of each MERS or its designeeMortgage Loan, an assignment in recordable form (which may be included in a blanket assignment or assignments) the original Mortgage, noting the presence of the MIN for that Mortgage to Loan and either language indicating that the Trustee; and
(2) Each Cooperative Mortgage Loan (other than is a Designated MOM Loan if the Mortgage Loan is a MOM Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that or if such Mortgage Note is Loan was not a Confirmatory MOM Loan at origination, the original Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or assignment to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) aboveMERS, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance each case with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with respect evidence of recording thereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, together with an Officer's Certificate of the Seller certifying that the copy of such Mortgage delivered to the Indenture Trustee (or its Custodian) is a true copy and that the original of such Mortgage Loans has been forwarded to the public recording office, or, in the case of a Mortgage that has been lost, a copy thereof (other than with respect certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller's expense) acceptable to a Cooperative the Indenture Trustee and the Depositor that an original recorded Mortgage is not required to enforce the Indenture Trustee's interest in the Mortgage Loan). The Company shall also retain in its files ;
(iv) the Primary Insurance Policy evidencing any primary mortgage insurance original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans during Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the period when Closing Date because of a delay caused by the related insurance is in force. (The copies public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the Mortgageoriginal thereof, intervening assignments together with an Officer's Certificate of the Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Indenture Trustee (or its custodian) on behalf of the Issuer is a true copy and that the original of such agreement has been forwarded to the public recording office;
(v) in the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment of Mortgage, if anyin form and substance acceptable for recording. The Mortgage shall be assigned to "Deutsche Bank National Trust Company, title insurance binder and as Indenture Trustee for Thornburg Mortgage Securities Trust 2003-6, withoux xxxxxxxe";
(vi) in the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in the case of an intervening Assignment of Mortgage that has been lost, a written Opinion of Counsel (delivered at the Seller's expense) acceptable to the Indenture Trustee that such original intervening Assignment of Mortgage is not required to enforce the Indenture Trustee's interest in the Mortgage Loans;
(vii) the original Primary Insurance Policy, if any, described in or certificate, if any;
(viii) the two preceding sentences are collectively referred to herein as original or a certified copy of lender's title insurance policy;
(ix) the "Document File" original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(x) with respect to each Mortgage any Cooperative Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09Cooperative Loan Documents.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Thornburg Mortgage Inc)
Conveyance of Mortgage Loans. (a) It is the intention of the parties hereto that a common law trust be established pursuant to this Agreement and further such trust be designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3". Wells Fargo Bank, N.A. is hereby appointed, and does hereby agree to acx, xx Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the exclusive use and benefit of all present and future Certificateholders. It is not intended that this Agreement create a partnership or a joint-stock association.
(b) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-sell, set over and otherwise convey to the Trustee Trustee, in trust, without recourse recourse, for the benefit of the Certificateholders (except and for the benefit of the other parties to this Agreement as provided hereintheir respective interests may appear) and, in the case of a Serviced Whole Loan, the related Companion Loan Holder, all the right, title and interest of the Company in Depositor in, to and to the Mortgage Loans, including all interest and principal received by the Company on or with respect to under (i) the Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files, (ii) the Mortgage Loan Purchase and Sale Agreements and (iii) all other assets included or to be included in the Trust Fund. Such assignment includes (i) the Mortgage Loans that from time to time are subject to this Agreement, all interest accrued on the Mortgage Loans on and after the Cut-off Date and all principal payments received on the Mortgage Loans after the Cut-off Date (other than payments of principal and interest payments due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date, which shall belong and be promptly remitted to the applicable Mortgage Loan Seller). The Company acknowledges it has sold , together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the related Mortgage Loan Seller; (ii) any REO Property acquired in respect of a Mortgage Loan; (iii) such funds or assets that from time to time are deposited into the Certificate Account, the REMIC I Distribution Account, the REMIC II Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Account and the REO Account (if established), and (iv) in the case of a Mortgage Loan included in a Whole Loan, all the right, title and interest of the Depositor in, to and under the related Intercreditor Agreement. The conveyance of the ChampionsGate Hotel Pari Passu Mortgage Loan and the One Park Avenue Pari Passu Mortgage Loan, along with the right to service each of the ChampionsGate Hotel Pari Passu Mortgage Loan and the One Park Avenue Pari Passu Mortgage Loan are subject to the terms and conditions of the related Non-Serviced Loan Pooling Agreement and the related Intercreditor Agreement. This conveyance is subject to the rights of the Sub-Servicers pursuant to the Sub-Servicing Agreements, which rights are subject in any event to this Agreement. Under United States generally accepted accounting principles, the Depositor shall report: (i) its acquisition of the Mortgage Loans from the Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and to Sale Agreements, as a purchase of such Mortgage Loans from the Mortgage Loan Sellers; and (ii) its transfer of the Mortgage Loans to the Trustee Trustee, pursuant to the extent provided above and that retention this Section 2.01(b), as a sale of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the such Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or fileDepositor shall cause all of its records to reflect such acquisition as a purchase and such transfer as a sale (in each case, or cause as opposed to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companya secured loan).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-3)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders and the Certificate Insurer all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest due thereon after the applicable Cut-off Date and all collections in respect of interest and principal due after the applicable Cut-off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and to the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing and (vi) all other assets included or to be included in the Trust Fund; provided, that such assignment shall not include any Servicing Rights with respect to the Mortgage Loans. Such assignment includes all interest and principal due to the Depositor after the Cut-off Date with respect to the Mortgage Loans. In exchange for such transfer and assignment, the Depositor shall receive the Certificates. It is acknowledged and agreed that the Trustee hereunder shall also serve as the Administrator under the Yield Maintenance Allocation Agreement and the Yield Maintenance Agreement. The Depositor hereby directs the Administrator to execute, deliver and perform its obligations under the Yield Maintenance Allocation Agreement and the Yield Maintenance Agreement, not in its individual capacity, but solely as Administrator on behalf of the Yield Maintenance Trust. Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection or indemnification to the Trustee shall apply to the Administrator’s execution and performance of its duties and obligations under the Yield Maintenance Allocation Agreement and the Yield Maintenance Agreement. The Depositor hereby directs the Trustee to execute, not in its individual capacity, but solely as Trustee on behalf of the Trust Fund, the Yield Maintenance Allocation Agreement and perform its duties and obligations thereunder. It is agreed and understood by the Depositor, the Seller and the Trustee that it is not intended that any Mortgage Loan be included in the Trust Fund that is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, effective as of November 27, 2003, or The Home Loan Protection Act of New Mexico, effective as of January 1, 2004, or that is a “High Cost Home Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act, effective as of November 7, 2004, or that is an “Indiana High Cost Home Mortgage Loan” as defined in the Indiana High Cost Home Loan Act, effective as of January 1, 2005. Notwithstanding anything provided herein to the contrary, each of the parties hereto agrees and acknowledges that, notwithstanding the transfer, conveyance and assignment of the Mortgage Loans from the Depositor to the Trustee pursuant to this Agreement, the GCFP remains the sole and exclusive owner of the related Servicing Rights with respect to the Mortgage Loans. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreement (other than the Servicing Rights and the right to terminate the Servicer for an Event of Default under Section 11.07(b) of the Servicing Agreement) to the extent assigned in the Mortgage Loan Purchase Agreement. The Depositor hereby expressly retains and does not delegate the right to terminate the Servicer for an Event of Default pursuant to Section 11.07(b) of the Servicing Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under the Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of the Mortgage Loan documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, (i) the Company does hereby deliver to Depositor directs the Trustee to appoint Deutsche Bank National Trust Company as Custodian, and (or ii) the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01 or the Custodial Agreement, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the Company, including all intervening endorsements showing a complete chain of endorsement from the originator following form: “Pay to the Company; providedorder of Xxxxx Fargo Bank, howeverN.A., that if such as Trustee for HarborView Mortgage Note is a Confirmatory Loan Trust Mortgage Loan Pass-Through Certificates, Series 2006-10, without recourse”, or with respect to any lost Mortgage Note, such Confirmatory an original Lost Note Affidavit stating that the original Mortgage Note may be payable directly to was lost, misplaced or destroyed, together with a copy of the Company or may show a complete chain of endorsement from the named payee to the Companyrelated Mortgage Note;
(ii) Any assumption except as provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name case of each MERS or its designeeMortgage Loan, an assignment in recordable form (which may be included in a blanket assignment or assignments) the original Mortgage, noting the presence of the MIN for that Mortgage to Loan and either language indicating that the Trustee; and
(2) Each Cooperative Mortgage Loan (other than is a Designated MOM Loan if the Mortgage Loan is a MOM Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that or if such Mortgage Note Loan was not a MOM Loan at origination, the original Mortgage and the assignment to MERS, in each case 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a certified copy of such Mortgage or power of attorney, as the case may be, together with an Officer’s Certificate of the Seller certifying that the copy of such Mortgage delivered to the Trustee (or its Custodian) is a Confirmatory true copy and that the original of such Mortgage Note, such Confirmatory Mortgage Note may be payable directly has been forwarded to the Company or may show public recording office, or, in the case of a complete chain Mortgage that has been lost, a copy thereof (certified as provided for under the laws of endorsement from the named payee appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Company;
(ii) A counterpart of the Proprietary Lease Trustee and the Assignment of Proprietary Lease executed Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in blank or to the originator of the Cooperative Mortgage Loan;
(iii) The related Cooperative Stock Certificatethe original or copy of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an undated stock power Officer’s Certificate of the Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or other similar instrumentits custodian) executed in blankon behalf of the Trust Fund is a true copy and that the original of such agreement has been forwarded to the public recording office;
(iv) A counterpart in the case of the recognition agreement by the Cooperative of the interests of the mortgagee with respect each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment, in form and substance acceptable for recording. The Mortgage shall be assigned to the related Cooperative Loan“Xxxxx Fargo Bank, N.A., as Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2006-10, without recourse;”
(v) The Security Agreementin the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment showing a complete chain of assignments, or, in the case of an intervening Assignment that has been lost, a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee and any NIMS Insurer that such original intervening Assignment is not required to enforce the Trustee’s interest in the Mortgage Loans;
(vi) Copies of the original UCC-1 financing statementPrimary Insurance Policy, and any continuation statementsif any, filed by the originator of such Cooperative Loan as secured partyor certificate, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Leaseif any;
(vii) If applicable, copies the original or a certified copy of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of lender’s title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;insurance policy; and
(viii) An executed with respect to any Cooperative Loan, the Cooperative Loan Documents. In connection with the assignment of any MERS Mortgage Loan, the Seller agrees that it will take (which may be a blanket assignment for all Cooperative Loans) or shall cause the Servicer to take), at the expense of the interest Seller (with the cooperation of the Company in the Security Agreement, Assignment of Proprietary Lease Depositor and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund MERS® System to be shown as indicate that such Mortgage Loans have been assigned by the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the Custodian).
(3case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the HarborView Mortgage Loan Trust 2006-10. Notwithstanding anything herein to the contrary, the Trustee is not responsible for monitoring any MERS Mortgage Loans. With respect to each Designated Cooperative Loan, the Company Seller, on behalf of the Depositor, does hereby deliver to the Trustee (or the Custodian) the Designated related Cooperative Loan Closing Documents.
Documents and the Seller shall take (cor cause the Servicer to take), at the expense of the Seller (with the cooperation of the Depositor and the Trustee) In connection such actions as are necessary under applicable law (including but not limited to the relevant UCC) in order to perfect the interest of the Trustee in the related Mortgaged Property. Assignments of each Mortgage with respect to each Mortgage Loan transferred that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and assigned not at the expense of the Trust Fund or the Trustee) acceptable to the Trustee, each Rating Agency, recording in such states is not required to protect the Company Trust Fund’s interest in the related Mortgage Loans; provided, further, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall deliver to be submitted for recording by the Trustee Seller (or the Custodian) Seller will cause the following documents or instruments as promptly as practicableServicer to submit each such assignment for recording), but in any event within 30 days, after receipt by at the Company of all such documents cost and instruments for all expense of the outstanding Mortgage Loans:
Seller, in the manner described above, at no expense to the Trust Fund or Trustee, upon the earliest to occur of (1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor and the Trustee, or the Custodian on behalf of the Trustee), in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Mortgage Loan that has been assigned is not a MERS Mortgage Loan. The Custodian agrees to execute and deliver to the CompanyDepositor and to the Trustee on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the related filed intervening UCC-3 financing statements (form attached as Exhibit G-1 hereto. If the original lender’s title insurance policy, or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(vii) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) Trustee, promptly upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge receipt thereof, any other documents constituting a part of a Trigger EventMortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of For Mortgage Loans which (if any) that have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the CompanyClosing Date, in lieu of the Seller delivering the above documents documents, the Servicer shall deliver to the Trustee, or to the Custodian on behalf of the Trustee, prior to the first Distribution Date, an Officer’s Certificate, which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account have been so deposited. All original documents that are not delivered to the Trustee on behalf of the Trust Fund shall be held by the Servicer in trust for the Trustee, for the benefit of the Trust Fund, the Certificateholders and the Certificate Insurer. The Depositor herewith delivers to the Trustee a certification of a Servicing Officer an executed copy of the nature set forth in Section 3.09.
(d) Mortgage Loan Purchase Agreement. The Company Depositor shall not be required have the right to record receive any and all loan-level information regarding the assignments characteristics and performance of the Mortgages referred Mortgage Loans upon request, and to in Section 2.01(b)(1)(iii) publish, disseminate or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that otherwise utilize such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments its discretion, subject to the Trustee applicable laws and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companyregulations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HarborView 2006-10)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) for the benefit of the Certificateholders and the Certificate Insurer all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Initial Mortgage Loan identified on the Mortgage LoansLoan Schedule, including the related Cut-off Date Principal Balance, all interest due thereon after the Cut-off Date and all collections in respect of interest and principal received by the Company 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, and all Principal Prepayments received on or before, after the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, ; (ii) its security interest any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in and to any Additional Collateral, lieu of foreclosure; (iii) its right to receive payments interest in any insurance policies in respect of the Mortgage Loans; (iv) all proceeds of any Pledged Asset of the foregoing; (v) the rights of the Depositor under the Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Purchase Agreement, and (ivvi) its rights as beneficiary under all other assets included or to be included in the Surety Bond in respect of any Pledged Asset Mortgage LoanTrust Fund. In addition, Such assignment includes all interest and principal due to the Depositor or the Master Servicer after the Cut-off Date with respect to any CashSaver the Initial Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) Loans. In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver to, and deposit with the Trustee) , or its designated agent (the "Custodian"), the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana "Mortgage File") so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either (A) in blank by blank, in which case the Company, including all intervening endorsements showing a complete chain Trustee shall cause the endorsement to be completed upon the request of endorsement from and at the originator expense of the Seller or (B) in the following form: "Pay to the Company; providedorder of Bankers Trust Company of California, howeverN.A., that if such as Trustee under the Pooling and Servicing Agreement, dated as of October 1, 1999, United PanAm Mortgage Note is a Confirmatory Loan Trust 1999-2, Asset-Backed Certificates, Series 1999-2, without recourse", or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a copy of the related mortgage note; PROVIDED, HOWEVER, that such Confirmatory substitutions of Lost Note Affidavits for original Mortgage Note Notes may be payable directly occur only with respect to Mortgage Loans, the Company aggregate Cut-off Date Principal Balance of which is less than or may show a complete chain equal to 1.00% of endorsement from the named payee to Pool Balance as of the CompanyCut-off Date;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the original recorded power of attorney, if the Mortgage Loans (other than with respect was executed pursuant to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies power of the Mortgageattorney, intervening assignments with evidence of Mortgagerecording thereon or, if anysuch Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, title insurance binder and the Primary Insurance Policyhas been lost or is not otherwise available, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any copy of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes Mortgage or power of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeattorney, as the case may be, certified to be a true and complete copy of the original submitted for recording;
(iii) an original Assignment of Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned either (A) in blank or (B) to "Bankers Trust Company shall insert of California, N.A., as Trustee under the recording Pooling and Servicing Agreement, dated as of October 1, 1999, United PanAm Mortgage Loan Trust 1999-2, Asset-Backed Certificates, Series 1999-2, without recourse";
(iv) an original copy of any intervening assignment of Mortgage showing a complete chain of assignments;
(v) the original or filing information a certified copy of lender's title insurance policy; and
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any. The Trustee agrees to execute and deliver (or cause the Custodian to execute and deliver) to the Depositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the assignments form attached as Exhibit G-3 hereto. The Seller shall within 20 days of receiving written instructions to such effect from the Mortgages Certificate Insurer or UCC-3 assignments to the Trustee and shall following the Closing Date submit or cause the same to be recorded or filedsubmitted for recording, at the CompanySeller's expenseexpense and at no expense to the Trust Fund, the Trustee, the PMI Insurer or the Certificate Insurer, in the appropriate public office for real property records records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such Assignment is lost or UCC financing statementsreturned unrecorded because of a defect therein, except the Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter submit each such Assignment for recordation. If any of the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of the Closing Date (or such other time permitted under such provisions) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee or the Custodian no later than the Closing Date, of a copy of each such document certified by the Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Company Seller, delivery to the Trustee or the Custodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy, or a certified copy thereof, was not delivered pursuant to Section 2.01(v) above, the Seller shall deliver or cause to be delivered to the Trustee or the Custodian, the original or a copy of a written commitment or interim binder or preliminary report of title issued by the title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee or the Custodian, promptly upon receipt thereof. The Seller shall deliver or cause to be delivered to the Trustee or the Custodian promptly upon receipt thereof any other 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. Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Seller shall have 90 days to cure such defect or deliver such missing document to the Trustee or the Custodian. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03. The Seller shall cause the Assignments of Mortgage which were delivered in blank and cause to be completed and shall cause all Assignments referred to in Section 2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv) hereof to be recorded; PROVIDED, HOWEVER, the Seller need not cause to be so completed and recorded any assignment of mortgage Assignment which relates to a Mortgage Loan secured by property in a any jurisdiction under the laws of which, on the basis of as evidenced by an Opinion of Counsel reasonably satisfactory delivered by the Seller to the Trustee Trustee, the Certificate Insurer and satisfactory to each the Rating Agency (as evidenced in writing)Agencies, the recordation of such assignment is not necessary to protect the Trustee's interest in the related Mortgage Loan. The Seller shall be required to deliver such Assignments for recording within 30 days of the Closing Date. The Seller shall furnish the Trustee, or its designated agent, with a copy of each assignment of Mortgage submitted for recording. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute Assignment prepared or have such defect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. In the event that any Mortgage Note is endorsed in blank as of the Closing Date, promptly following the Closing Date the Seller shall cause to be completed such endorsements "Pay to the order of Bankers Trust Company of California, N.A., as Trustee against discharge under the Pooling and Servicing Agreement, dated as of October 1, 1999, United PanAm Mortgage Loan Trust 1999-2, Series 1999-2, without recourse." The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement. In addition, on or prior to the Closing Date, the Seller shall cause the Certificate Insurer and the PMI Insurer to deliver the Certificate Insurance Policy and the PMI Policy, respectively, to the Trustee. The Master Servicer shall forward to the Custodian original documents evidencing an assumption, modification, consolidation or extension of any Mortgage Loan entered into in accordance with this Agreement within two weeks of their execution; provided, however, that the Master Servicer shall provide the Custodian with a certified true copy of any such document submitted for recordation within two weeks of its execution, and shall provide the original of any document submitted for recordation or a copy of such Mortgage Loan document certified by the Company or any valid assertion that any Person other than appropriate public recording office to be a true and complete copy of the Trustee has title to or any rights in such Mortgage Loanoriginal within 270 days of its submission for recordation. In the event that the Company fails or refuses Master Servicer cannot provide a copy of such document certified by the public recording office within such 270 day period, the Master Servicer shall deliver to the Custodian, within such 270 day period, an Officer's Certificate of the Master Servicer which shall (A) identify the recorded document, (B) state that the recorded document has not been delivered to the Custodian due solely to a delay caused by the public recording office, (C) state the amount of time generally required by the applicable recording office to record or file and return a document submitted for recordation, if known, and (D) specify the assignment date the applicable recorded document is expected to be delivered to the Custodian, if known, and, upon receipt of Mortgages or UCC-3 financing statement in a copy of such document certified by the circumstances provided abovepublic recording office, the Trustee Master Servicer shall record or cause immediately deliver such document to the Custodian. In the event the appropriate public recording office will not certify as to the accuracy of such document, the Master Servicer shall deliver a copy of such document certified by an officer of the Master Servicer to be recorded or filed such assignment or UCC-3 financing statement at the expense a true and complete copy of the Company. In connection with any such recording or filing, original to the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyCustodian.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Funding Corp)
Conveyance of Mortgage Loans. (a) The Company, as of the Closing Date, and concurrently with the execution and delivery of this Agreementhereof, does hereby assign, transfer, assignsell, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage LoansLoans 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 for the benefit of the Certificateholders, including the amount to be deposited by or on behalf of the Company into the Net WAC Shortfall Reserve Fund. Such assignment includes all principal and interest and principal received by the Company Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date or Subsequent Cut-off Date, as applicable). The Company Master Servicer hereby acknowledges the receipt by it has sold all rightof cash in an amount equal to $265,625.70 (the "Special Deposit"), title and representing interest in and to at the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian Rate, for the calendar month of January 2002, for those Mortgage Loans which do not have Monthly Payments due on February 1, 2002. The Master Servicer shall hold such amount in the Custodial Account and shall include such amount in the Available Distribution Amount for the Distribution Date in February 2002. The Trustee for benefit hereby acknowledges the receipt by it of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Pre-Funded Amount and the intent of this AgreementInterest Coverage Amount. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby has caused the Seller to deliver to the Trustee (or the Custodianto, on behalf of and deposit with the Trustee) , as described in the Mortgage Loan Purchase Agreement, with respect to each Initial Mortgage Loan, and as described in the Subsequent Mortgage Loan Purchase Agreement, with respect to each Subsequent Mortgage Loan, the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assignedinstruments:
(i) The the original Mortgage Note, Note endorsed without recourse in blank by recourse, "Bankers Trust Company of California, N.A., as trustee under the CompanyPooling and Servicing Agreement relating to Impac Secured Assets Corp., including Mortgage Pass-Through Certificates, Series 2002-1" with all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; providedPerson endorsing it to the Trustee or, however, that if such with respect to any Mortgage Loan as to which the original Mortgage Note is has been permanently lost or destroyed and has not been replaced, a Confirmatory Mortgage Note, such Confirmatory Mortgage Lost Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the CompanyAffidavit;
(ii) A counterpart the original recorded Mortgage, noting the presence of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator MIN of the Cooperative 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 indicated thereon or, if the original Mortgage has not been returned from the public recording office, a copy of the Mortgage certified by the Seller or the public recording office in which such Mortgage has been recorded to be a true and complete copy of the original Mortgage submitted for recording;
(iii) The related Cooperative Stock Certificateunless the Mortgage Loan is registered on the MERS(R)System, together with an undated stock power (a duly executed original Assignment of the Mortgage, without recourse, in recordable form to "Bankers Trust Company of California, N.A., as trustee," or other similar instrument) executed in blankto "Bankers Trust Company of California, N.A., as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2002-1";
(iv) A counterpart the original recorded Assignment or Assignments of the recognition agreement Mortgage showing an unbroken chain of assignment 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) or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Cooperative Seller to be a true and complete copy of the interests of the mortgagee with respect original Assignment submitted to the related Cooperative Loantitle insurance company for recording;
(v) The Security Agreementthe original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) Copies a copy of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;related hazard insurance policy; and
(vii) If applicablea true and correct copy of any assumption, copies of the UCC-3 assignments of the security interest modification, consolidation or substitution agreement. The Seller is obligated as described in clause (vi) abovethe Mortgage Loan Purchase Agreement, sent with respect to the appropriate public office for filingInitial Mortgage Loans, showing an unbroken chain of title from and will be obligated as described in the originator Subsequent Mortgage Loan Purchase Agreement, with respect to the CompanySubsequent Mortgage Loans, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to deliver to the Trustee; and
: (ixa) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding either the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded Mortgage, or in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form event such original cannot be delivered by the Company Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording Assignments of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgagethereon, showing a complete an unbroken chain of assignment from the originator to the Company (other than with respect to Seller, or in the event such original cannot be delivered by the Seller, a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the Company, the related filed intervening UCC-3 financing statements (not previously delivered Trustee pursuant to Section 2.01(b)(2)(vii))clause (iv) above. However, showing a complete chain of assignment from the named originator pursuant to the Company. Pending such deliveryMortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Subsequent Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger EventLoans), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company Seller need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a any jurisdiction under the laws of which, on the basis of as evidenced by an Opinion of Counsel reasonably satisfactory delivered by the Seller to the Trustee and satisfactory to each the Rating Agency (as evidenced in writing)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 Seller in the manner described above, at no expense to the Trust or the Trustee, upon the earliest to occur of: (i) direction by the Holders of Certificates evidencing at least 25% of the Voting Rights, (ii) the occurrence of a Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one assignment, 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 Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee against discharge of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Trustee because of any defect therein, the Seller is required, as described in the Mortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, as applicable), to prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this section. The Seller is required as described in the Mortgage Loan Purchase Agreement, with respect to the Initial Mortgage Loans, and will be required as described in the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans, to exercise its best reasonable efforts to deliver or cause to be delivered to the Trustee within 120 days of the Closing Date, with respect to the Initial Mortgage Loans, or the Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Trustee pursuant to this Section 2.01. In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, the Seller further agrees that it will cause, at the Seller's own expense, as of the Closing Date, the MERS(R) System to indicate that such Mortgage Loans have been assigned by the Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Company further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. All original documents relating to the Mortgage Loans which are not delivered to the Trustee are and shall be held by the Master Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. Except as may otherwise expressly be provided herein, none of the Company, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Company or any valid assertion that any Person other than to the Trustee has title as provided in this Section be, and be construed as, a sale of the Mortgage Loans and the REMIC 1 Regular Interests as provided for in this Section 2.01 by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans and the REMIC 1 Regular Interests by the Company to the Trustee to secure a debt or any rights other obligation of the Company. However, in such Mortgage Loan. In the event that the Company fails or refuses to record or file Mortgage Loans and the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause REMIC 1 Regular Interests are held to be recorded or filed such assignment or UCC-3 financing statement at the expense property of the Company. In connection with , or if for any such recording reason this Agreement is held or filingdeemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof, (C) the REMIC 1 Regular Interests and (D) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (D); (c) the possession by the Trustee or any other agent of the Trustee of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall furnish be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such documents secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Agreement, take such actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments of Mortgages or UCC-3 financing statement at the expense term of the CompanyAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. (a) The CompanySeller hereby sells, concurrently with the execution and delivery of this Agreementtransfers, does hereby transferassigns, assign, set-sets over and otherwise convey conveys to the Trustee Depositor, without recourse (except as provided herein) recourse, all the right, title and interest of the Company Seller in and to the Mortgage Loans, including all interest and principal received and receivable by the Company Seller on or with respect to the Mortgage Loans after the Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Seller as an Initial Certificate Account Deposit as provided in this Agreement, other than payments of principal and interest due and payable on the Mortgage Loans on or before, prior to the Cut-off Date and all Principal Prepayments received on or before, interest accruing prior to the Cut-off Date). The Company acknowledges Seller confirms that, concurrently with the transfer and assignment, it has sold deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders, without recourse, all right title and interest in the Mortgage Loans. The Seller further agrees to assign all of its right, title and interest in and to the Mortgage Loans each of the interest rate cap transactions evidenced by, respectively, the Confirmation And Agreement 1, the Confirmation And Agreement 2 and the Confirmation and Agreement 3 to, and to cause all of its obligations in respect of each such transaction to be assumed by, the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit on behalf of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage LoanTrust Fund, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with on the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loanconditions set forth in, respectively, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Cap Contract 1 Assignment Agreement, the Cap Contract 2 Assignment Agreement and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage LoanCap Contract 3 Assignment Agreement.
(b) [Reserved]
(c) [Reserved]
(d) [Reserved]
(e) [Reserved]
(f) [Reserved]
(g) In connection with such the transfer and assignmentassignment of each Mortgage Loan, the Company does hereby deliver to Depositor has delivered to, and deposited with, the Co-Trustee (or or, in the Custodian, on behalf case of the TrusteeDelay Delivery Mortgage Loans, will deliver to, and deposit with, the Co-Trustee within the time periods specified in the definition of Delay Delivery Mortgage Loans) (except as provided in clause (vi) below) for the benefit of the Certificateholders, the following documents or instruments with respect to:
(1) Each to each such Mortgage Loan so assigned (other than any Cooperative Loan or Designated with respect to each Mortgage Loan, clause (i) so transferred and assigned:through (vi) below, together, the "Mortgage File" for each such Mortgage Loan):
(i) The the original Mortgage Note, endorsed without recourse in blank by the CompanySeller or the originator of such Mortgage Loan, including without recourse, in the following form: "Pay to the order of ________________ without recourse", with all intervening endorsements showing that show a complete chain of endorsement from the originator to the Company; providedSeller, howeveror, that if such the original Mortgage Note is has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, stating that the original Mortgage Note was lost or destroyed, together with a Confirmatory copy of the related Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption in the case of each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage, and modification agreementin the case of each MERS Mortgage Loan, 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 indicated thereon, or a copy of the Mortgage certified by the public recording office in which such Mortgage has been recorded;
(iii) Except for any Mortgage which has been recorded in the name case of each Mortgage Loan that is not a MERS or its designeeMortgage Loan, an a duly executed assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to "Asset-Backed Certificates, Series 2002-BC1, CWABS, Inc., by The Bank of New York, a New York banking corporation, as trustee under the Trustee; and
Pooling and Servicing Agreement dated as of January 1, 2002, without recourse" (2) Each Cooperative Loan (other than a Designated Loan) so transferred each such assignment, when duly and assigned:
(i) The original Mortgage Notevalidly completed, endorsed without recourse to be in blank by recordable form and sufficient to effect the Company assignment of and showing an unbroken chain of endorsements from the originator transfer to the Company; providedassignee thereof, however, that if under the Mortgage to which such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blankassignment relates);
(iv) A counterpart the original recorded assignment or assignments of the recognition agreement by Mortgage together with all interim recorded assignments of such Mortgage (noting the Cooperative presence of a MIN in the interests case of the mortgagee with respect to the related Cooperative each MERS Mortgage Loan);
(v) The Security Agreement;the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) Copies the original or duplicate original lender's title policy or a printout of the electronic equivalent and all riders thereto or, in the event such original UCC-1 financing statementtitle policy has not been received from the insurer, such original or duplicate original lender's title policy and all riders thereto shall be delivered within one year of the Closing Date. In addition, in connection with the assignment of any MERS Mortgage Loan, the Seller agrees that it will cause, at the Seller's own expense, the MERS(R) System to indicate (and provide evidence to the Trustee that it has done so) that such Mortgage Loans have been assigned by the Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and any continuation statementswill not permit the Master Servicer to, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicableMaster Servicer agrees that it will not, copies alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the UCC-3 terms of this Agreement. In the event that in connection with any Mortgage Loan that is not a MERS Mortgage Loan the Seller cannot deliver the original recorded Mortgage or all interim recorded assignments of the security interest described in Mortgage satisfying the requirements of clause (viii), (iii) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause or (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgagehereof, the Company may, in lieu of delivering the completed assignment in recordable form, Seller shall deliver or cause to be delivered to the Co-Trustee (or the Custodian) the assignment in a true copy of such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name and of MERS or its designee, no each such undelivered interim assignment of the Mortgage in favor each certified by the Seller, the applicable title company, escrow agent or attorney, or the originator of such Mortgage, as the case may be, to be a true and complete copy of the Trustee original Mortgage or assignment of Mortgage submitted for recording. For any such Mortgage Loan that is not a MERS Mortgage Loan the Seller shall be required promptly deliver or cause to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof delivered to the Co-Trustee (such original Mortgage and such assignment or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage assignments with evidence of recording indicated thereon (other upon receipt thereof from the public recording official, or a copy thereof, certified, if appropriate, by the relevant recording office, but in no event shall any such delivery be made later than with respect 270 days following the Closing Date; provided that in the event that by such date the Seller is unable to deliver or cause to be delivered each such Mortgage and each interim assignment by reason of the fact that any such documents have not been returned by the appropriate recording office, or, in the case of each interim assignment, because the related Mortgage has not been returned by the appropriate recording office, the Seller shall deliver or cause to be delivered such documents to the Co-Trustee as promptly as possible upon receipt thereof. If the public recording office in which a Cooperative Loan);
(2) Mortgage or interim assignment thereof is recorded retains the original of such Mortgage or assignment, a copy of the title insurance policy (other than original Mortgage or assignment so retained, with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, certified to be true and complete by such recording office, shall satisfy the Seller's obligations in Section 2.01. If any document submitted for recording pursuant to this Agreement is (x) lost prior to recording or rejected by the applicable recording office, the Seller shall immediately prepare or cause to be prepared a substitute and submit it for recording, and shall deliver copies and originals thereof in accordance with the foregoing or (y) lost after recording, the Seller shall deliver to the Co-Trustee a copy of such document certified by the applicable public recording office to be a true and complete copy of the original recorded document. The Seller shall promptly forward or cause to be forwarded to the Co-Trustee (x) from time to time additional original documents evidencing an assumption or modification of a Mortgage Loan and (by) title insurance binders with respect any other documents required to be delivered by the Depositor or the Master Servicer to the Mortgage Loans (other than with respect to a Cooperative Loan)Trustee within the time periods specified in this Section 2.01. The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with With respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (Loan other than any such documents previously delivered a MERS Mortgage Loan as to which the Trustee (or the Custodian) as originals or copies) either related Mortgaged Property and Mortgage File are located in (a) upon the written request State of the Trustee California or (b) when any other jurisdiction under the Company laws of which the recordation of the assignment specified in clause (iii) above is not necessary to protect the Trustee's and the Certificateholders, interest in the related Mortgage Loan, as evidenced by an Opinion of Counsel, delivered by the Seller to the Trustee and a copy to the Rating Agencies, in lieu of recording the assignment specified in clause (iii) above, the Seller may deliver an unrecorded assignment in blank, in form otherwise suitable for recording to the Co-Trustee; provided that if the related Mortgage has not been returned from the applicable public recording office, such assignment, or any copy thereof, of the Mortgage may exclude the information to be provided by the recording office. As to any Mortgage Loan other than a MERS Mortgage Loan, the procedures of the preceding sentence shall be applicable only so long as the related Mortgage File is maintained in the possession of the Co-Trustee in the State or jurisdiction described in such sentence. In the event that with respect to Mortgage Loans other than MERS Mortgage Loans (i) the Seller, the Depositor or the Master Servicer gives written notice to the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation that recording is required to request delivery of protect the Document Files unless a Responsible Officer right, title and interest of the Trustee has actual notice or knowledge on behalf of the occurrence Certificateholders in and to any Mortgage Loan, (ii) a court recharacterizes the sale of the Mortgage Loans as a financing, or (iii) as a result of any change in or amendment to the laws of the State or jurisdiction described in the first sentence of this paragraph or any applicable political subdivision thereof, or any change in official position regarding application or interpretation of such laws, including a holding by a court of competent jurisdiction, such recording is so required, the Trustee or the Co-Trustee shall complete the assignment in the manner specified in clause (iii) of the second paragraph of this Section 2.01 and the Seller shall submit or cause to be submitted for recording as specified above or, should the Seller fail to perform such obligations, the Trustee shall cause the Master Servicer, at the Master Servicer's expense, to cause each such previously unrecorded assignment to be submitted for recording as specified above. In the event a Mortgage File is released to the Master Servicer as a result of the Master Servicer's having completed a Request for Release in the form of Exhibit M, the Trustee shall complete the assignment of the related Mortgage in the manner specified in clause (iii) of the second paragraph of this Section 2.01. So long as the Co-Trustee maintains an office in the State of California, the Co-Trustee shall maintain possession of and not remove or attempt to remove from the State of California any of the Mortgage Files as to which the related Mortgaged Property is located in such State. In the event that the Seller fails to record an assignment of a Trigger EventMortgage Loan as herein provided within 90 days of notice of an event set forth in clause (i), (ii) or (iii) of the above paragraph, the Master Servicer shall prepare and, if required hereunder, file such assignments for recordation in the appropriate real property or other records office. The Seller hereby appoints the Master Servicer (and any successor servicer hereunder) as its attorney-in-fact with full power and authority acting in its stead for the purpose of such preparation, execution and filing. In the case of Mortgage Loans which have been prepaid in full after that become the subject of a Principal Prepayment between the Closing Date and the Cut-off Date and prior to the date of execution and delivery of this AgreementDate, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company Seller shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record deposit or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.deposited
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Cwabs Inc Asset Backed Certificatess Series 2002 Bc1)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class P Grantor Trust for the benefit of the Class P Certificates. Such assignment includes all interest and principal received by the Company or receivable 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, and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on the Certificates from and after the Cut-Off Date. The transfer and assignment of any Non-Serviced Mortgage Loan to the Trustee and will not deliver any instrument of satisfaction or conveyance with respect the right to a service such Mortgage or a Mortgage Loan, or convey or purport Loans are subject to convey any interest in a Mortgage Loan, except in accordance with the terms and conditions of the intent related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement. With respect to any Pledged Asset , hereby agrees that such Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey Loans remain subject to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect terms of any Pledged Asset each Non-Serviced Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In additionIntercreditor Agreement and, with respect to any CashSaver each Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loaneach Loan Pair Intercreditor Agreement.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee (or the Custodian, on behalf remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee) , the following documents Fiscal Agent, the Paying Agent, any Custodian, the Master Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may Special Servicer shall be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) Depositor to comply with the document delivery requirements of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred Purchase Agreements and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trusteethis Section 2.1(b). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with The applicable Seller shall, at the expense of such Seller as to each of its respective Mortgage Loan transferred Loans, promptly (and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after 45 days following the receipt by the Company of all such documents and instruments thereof) cause to be submitted for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticefiling, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except as appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of "Mortgage File". Each such assignment shall reflect that it should be returned by the Company need not cause public recording office to be so completed and recorded any the Trustee following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, assignment of mortgage which relates to Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall obtain therefrom a Mortgage Loan secured by property in a jurisdiction under certified copy of the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory recorded original. The applicable Seller shall forward copies thereof to the Trustee and satisfactory the Special Servicer. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the applicable Seller shall, pursuant to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such applicable Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided abovePurchase Agreement, the Trustee shall record promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall upon receipt thereof cause the same to be duly recorded or filed such assignment filed, as appropriate. The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or UCC-3 financing statement before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the Primary Servicing Agreement in favor of the Trustee and the Special Servicer to empower the Trustee and, in the event of the failure or incapacity of the Trustee, the Special Servicer, to submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as described in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). In The Sellers agree to reasonably cooperate with the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such recording parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or filingunder authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the related Seller's expense, after the periods set forth above; provided, however, the Company Trustee shall furnish not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents as may be reasonably necessary and records in the possession of the Depositor or the Sellers that relate to accomplish such recording the Mortgage Loans, Serviced Companion Mortgage Loans or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause B Notes and that are not required to be recorded a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer or filedthe Primary Servicer on its behalf, on or before the date that is 45 days following the Closing Date and shall be held by the Master Servicer or the Primary Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer or the Primary Servicer by the related Seller, the assignments of Mortgages or UCC-3 financing statement at Servicer Mortgage File, will include, to the expense extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the Companyfollowing items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, the insurance policies or certificates (as applicable), the property inspection reports, any financial statements on the property, any escrow analysis, the tax bills, the Appraisal, the environmental report, the engineering report, the asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies. Delivery of any of the foregoing documents to the Primary Servicer (or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the Depositor's obligations under this Section 2.1(d). None of the Master Servicer, the Special Servicer or the Primary Servicer shall have any liability for the absence of any of the foregoing items from the Servicing Mortgage File if such item was not delivered by the related Seller.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Inc Trust 2004 Top14)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey in trust to the Trustee without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies (including the PMI Policy) in respect of the Mortgage Loans; (iv) the rights of the Depositor under the Mortgage Loan Purchase Agreement, including (v) all other assets included or to be included in the Trust Fund, (vi) [reserved] and (vii) all proceeds of any of the foregoing. Such assignment includes all interest and principal received due and collected by the Company on Depositor or the Master Servicer after the Cut-off Date with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date)Loans. The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company Depositor, does hereby deliver to the Trustee (or the Custodianto, on behalf of and deposit with the Trustee) , or its designated agent (the "Custodian"), the following documents or instruments with respect to:
(1) Each to each Initial Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Noteassigned and the Originator, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) on behalf of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage NoteDepositor, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; providedshall, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form2.08, deliver or caused to be delivered to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With with respect to each Designated Subsequent Mortgage Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan., a "Mortgage File") The Company shall advise :
(i) the original Mortgage Note, endorsed either (A) in blank, in which case the Trustee shall cause the endorsement to be completed or (B) in writing if such delivery the following form: "Pay to the Trustee (and order of Wells Fargo Bank Minnesota, Xxxional Association, as Trustee, without recourse", or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the Custodian) shall not have occurred on original mortgage note was lost, misplaced or before the first anniversary destroyed, together with a copy of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Eventrelated mortgage note; provided, however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut- off Date Principal Balance or Subsequent Cut-off Date Principal Balance, as applicable, of which is less than or equal to 1.00% of the Pool Balance as of the Cut-off Date or Subsequent Cut-off Date, as applicable;
(ii) the original Mortgage with evidence of recording or filing shall not be required thereon, and the original recorded power of attorney, if the Company delivers Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the Trustee applicable public recording office, has been lost or is not otherwise available, a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any copy of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes Mortgage or power of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeattorney, as the case may be, certified to be a true and complete copy of the Company original submitted for recording;
(iii) an original Assignment, in form and substance acceptable for recording. The Mortgage shall insert be assigned either (A) in blank or (B) to "Wells Fargo Bank Minnesota, Nationax Xxxociation, as Trustee, without recourse";
(iv) an original copy of any intervening assignment of Mortgage showing a complete chain of assignments;
(v) the recording original or filing information a certified copy of lender's title insurance policy; and
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any. The Trustee agrees to execute and deliver (or cause the Custodian to execute and deliver) to the Depositor and the NIMS Insurer on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the assignments form attached as Exhibit F-3 hereto. If any of the Mortgages documents referred to in Section 2.01(ii), (iii) or UCC-3 assignments (iv) above has as of the Closing Date (or Subsequent Transfer Date, with respect to Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee or the Custodian no later than the Closing Date (or Subsequent Closing Date, with respect to Subsequent Mortgage Loans), of a copy of each such document certified by the Master Servicer, in its capacity as Originator, in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Master Servicer, in its capacity as Originator, delivery to the Trustee or the Custodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy, or a certified copy thereof, was not delivered pursuant to Section 2.01(v) above, the Master Servicer, in its capacity as Originator, shall deliver or cause to be delivered to the Trustee or the Custodian, the original or a copy of a written commitment or interim binder or preliminary report of title issued by the title insurance or escrow company or an original attorney's opinion of title, with the original or a certified copy thereof to be delivered to the Trustee or the Custodian, promptly upon receipt thereof. The Master Servicer or the Depositor shall deliver or cause to be delivered to the Trustee or the Custodian promptly upon receipt thereof any other 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. Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Master Servicer, in its capacity as Originator, shall have 120 days to cure such defect or deliver such missing document to the Trustee or the Custodian. If the Originator does not cure such defect or deliver such missing document within such time period, the Master Servicer, in its capacity as Originator, shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03. The Depositor (at the expense of the Master Servicer, in its capacity as Originator) shall cause the Assignments which were delivered in blank to be completed and shall cause all Assignments referred to in Section 2.01(iii) hereof and, to the same extent necessary, in Section 2.01(iv) hereof to be recorded recorded. The Depositor shall be required to deliver such Assignments for recording within 90 days of the Closing Date (or filedSubsequent Transfer Date, with respect to a Subsequent Mortgage Loan). Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless the Trustee and the Depositor receives notice that such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided, however, each Assignment shall be submitted for recording by the Depositor in the manner described above, at no expense to the Company's expenseTrust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master Servicer Event of Termination, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Master Servicer, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof, (v) if the Originator 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, (vi) any Mortgage Loan that is 90 days or more Delinquent and (vii) reasonable direction by the NIMS Insurer. Upon (a) receipt of written notice from the Trustee that recording of the Assignments is required pursuant to one or more of the conditions (excluding (v) and (vi) above) set forth in the preceding sentence or (b) upon the occurrence of condition (v) or (vi) in the preceding sentence, the Depositor shall be required to deliver such Assignments for recording as provided above, promptly and in any event within 30 days following receipt of such notice. Notwithstanding the foregoing, if the Originator fails to pay the cost of recording the Assignments, such expense will be paid by the Trustee and the Trustee shall be reimbursed for such expenses by the Trust. The Depositor shall furnish the Trustee, or its designated agent, with a copy of each Assignment submitted for recording. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Depositor shall promptly have a substitute Assignment prepared or have such defect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. In the event that any Mortgage Note is endorsed in blank as of the Closing Date (or Subsequent Transfer Date, with respect to Subsequent Mortgage Loans), within ninety (90) days of the Closing Date (or Subsequent Transfer Date, with respect to Subsequent Mortgage Loans) the Depositor shall cause to be completed such endorsements "Pay to the order of Wells Fargo Bank Minnesota, Nationax Xxxociation, as Trustee, without recourse." The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement and the PMI Policy. The Master Servicer shall forward to the Custodian original documents evidencing an assumption, modification, consolidation or extension of any Mortgage Loan entered into in accordance with this Agreement within two weeks of their execution; provided, however, that the Master Servicer shall provide the Custodian with a certified true copy of any such document submitted for recordation within two weeks of its execution, and shall provide the original of any document submitted for recordation or a copy of such document certified by the appropriate public recording office for real property records or UCC financing statements, except that the Company need not cause to be so completed a true and recorded any assignment complete copy of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws original within 365 days of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loanits submission for recordation. In the event that the Company fails or refuses Master Servicer cannot provide a copy of such document certified by the public recording office within such 365 day period, an Officers' Certificate of the Master Servicer which shall (A) identify the recorded document, (B) state that the recorded document has not been delivered to the Custodian due solely to a delay caused by the public recording office, (C) state the amount of time generally required by the applicable recording office to record or file and return a document submitted for recordation, if known and (D) specify the assignment date the applicable recorded document is expected to be delivered to the Custodian, and, upon receipt of Mortgages or UCC-3 financing statement in a copy of such document certified by the circumstances provided abovepublic recording office, the Trustee Master Servicer shall record or cause immediately deliver such document to the Custodian. In the event the appropriate public recording office will not certify as to the accuracy of such document, the Master Servicer shall deliver a copy of such document certified by an officer of the Master Servicer to be recorded or filed such assignment or UCC-3 financing statement at the expense a true and complete copy of the Company. In connection with any such recording or filing, original to the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyCustodian.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Option One Mort Accep Corp Asset Backed Cert Ser 2003-6)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor after the Cut-Off Date with respect to the Mortgage Loans. In exchange for such transfer and assignment, the Depositor shall receive the Certificates. Notwithstanding anything provided herein to the contrary, each of the parties hereto agrees and acknowledges that, notwithstanding the transfer, conveyance and assignment of the Mortgage Loans from the Depositor to the Trustee pursuant to this Agreement, the Servicing Rights Owner remains the sole and exclusive owner of the related Servicing Rights with respect to the Mortgage Loans. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreement to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under each Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of Mortgage Loan documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, (i) the Company does hereby deliver to Depositor directs the Trustee to appoint Deutsche Bank National Trust Company, as Custodian, and (or ii) the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the Company, including all intervening endorsements showing a complete chain of endorsement from the originator following form: “Pay to the Companyorder of U.S. Bank National Association, as Trustee for RBSGC Mortgage Loan Trust 2005-A, Mortgage Loan Pass-Through Certificates, Series 2005-A, without recourse”, or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note; provided, however, that if such substitutions of Lost Note Affidavits for original Mortgage Note Notes may occur only with respect to Mortgage Loans the aggregate Cut-Off Date Principal Balance of which is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly less than or equal to 2% of the Company or may show a complete chain of endorsement from the named payee to the CompanyCut-Off Date Aggregate Principal Balance;
(ii) Any assumption except as provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name case of each MERS or its designeeMortgage Loan, an assignment in recordable form (which may be included in a blanket assignment or assignments) the original Mortgage, noting the presence of the MIN for that Mortgage to Loan and either language indicating that the Trustee; and
(2) Each Cooperative Mortgage Loan (other than is a Designated MOM Loan if the Mortgage Loan is a MOM Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that or if such Mortgage Note Loan was not a MOM Loan at origination, the original Mortgage and the assignment to MERS, in each case 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, together with an Officer’s Certificate of the Seller certifying that the copy of such Mortgage delivered to the Trustee (or its Custodian) is a Confirmatory true copy and that the original of such Mortgage Note, such Confirmatory Mortgage Note may be payable directly has been forwarded to the Company or may show public recording office, or, in the case of a complete chain Mortgage that has been lost, a copy thereof (certified as provided for under the laws of endorsement from the named payee appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Company;
(ii) A counterpart of the Proprietary Lease Trustee and the Assignment of Proprietary Lease executed Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in blank or to the originator of the Cooperative Mortgage Loan;
(iii) The related Cooperative Stock Certificatethe original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an undated stock power Officer’s Certificate of, or stamp certified by, the Seller, title company, escrow agent or closing attorney certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or other similar instrumentits Custodian) executed in blankon behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office;
(iv) A counterpart in the case of the recognition agreement by the Cooperative each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment of the interests of the mortgagee with respect Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned in blank to the related Cooperative Loan“U.S. Bank National Association, as Trustee for RBSGC Mortgage Loan Trust 2005-A, Mortgage Loan Pass-Through Certificates, Series 2005-A, without recourse;”
(v) The Security Agreementin the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in the case of an intervening Assignment of Mortgage that has been lost, a written Opinion of Counsel (delivered to the Trustee and the Custodian at the Seller’s expense) acceptable to the Trustee (as the Trustee shall notify the Custodian) that such original intervening Assignment of Mortgage is not required to enforce the Trustee’s interest in the Mortgage Loans;
(vi) Copies of the original UCC-1 financing statementPrimary Insurance Policy, and any continuation statementsif any, filed by the originator of such Cooperative Loan as secured partyor certificate, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Leaseif any;
(vii) If applicablethe original or a certified copy of lender’s title insurance policy, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;if any; and
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in Cooperative Loan, the name of MERS or its designee, no Cooperative Loan Documents. In connection with the assignment of any MERS Mortgage Loan, the Mortgage in favor Seller agrees that it will take (or shall cause the related Servicer to take), at the expense of the Trustee shall be required to be prepared or delivered; insteadSeller (with the cooperation of the Depositor, the Company shall take all Master Servicer and the Trustee, such actions as are necessary to cause the Trust Fund MERS® System to be shown as indicate that such Mortgage Loans have been assigned by the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the Custodian).
(3case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the RBSGC Mortgage Loan Trust 2005-A. With respect to each Designated LoanCooperative Loan the Seller, on behalf of the Company Depositor does hereby deliver to the Trustee the related Cooperative Loan Documents and the Seller will take (or cause the Custodianrelated Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Master Servicer and the Trustee, such actions as are necessary under applicable law (including but not limited to the relevant UCC) in order to perfect the Designated Loan Closing Documents.
(c) In connection interest of the Trustee in the related Mortgaged Property. Assignments of each Mortgage with respect to each Mortgage Loan transferred that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and assigned not at the expense of the Trust or the Trustee) acceptable to the Trustee, each Rating Agency and the Company Master Servicer, recording in such states is not required to protect the Trustee’s interest in the related Mortgage Loans; provided, further, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall deliver to be submitted for recording by the Trustee Seller (or the Custodian) Seller will cause the following documents or instruments as promptly as practicableServicer to submit each such assignment for recording), but in any event within 30 days, after receipt by at the Company of all such documents cost and instruments for all expense of the outstanding Mortgage Loans:
Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the related Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Master Servicer and the Trustee (or the Custodian on behalf of the Trustee), in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Mortgage Loan that has been assigned is not a MERS Mortgage Loan. The Custodian, on behalf of the Trustee, agrees to execute and deliver to the CompanyDepositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note for each Mortgage Loan (with any exceptions noted), substantially in the related filed intervening UCC-3 financing statements (form attached as Exhibit G-1 hereto. If the original lender’s title insurance policy, or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(x) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) Trustee, promptly upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge receipt thereof, any other documents constituting a part of a Trigger EventMortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of For Mortgage Loans which (if any) that have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the CompanyClosing Date, in lieu of delivering the above documents documents, the Master Servicer shall deliver to the Trustee, or to the Custodian on behalf of the Trustee, prior to the first Distribution Date, an Officer’s Certificate, based on information provided to the Master Servicer from the related Servicer, which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account have been so deposited. All original documents that are not delivered to the Trustee on behalf of the Trust shall be held by the Master Servicer or the related Servicer in trust for the Trustee, for the benefit of the Trust and the Certificateholders. The Depositor herewith delivers to the Trustee a certification of a Servicing Officer an executed copy of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyPurchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, as of the Closing Date, and concurrently with the execution and delivery of this Agreementhereof, does hereby assign, transfer, assignsell, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company Depositor in and to the Mortgage Loans, including 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 for the benefit of the Certificateholders. Such assignment includes all principal and interest and principal received by the Company Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby Depositor has requested the Seller pursuant to each Mortgage Loan Purchase Agreement to deliver to the Trustee (or the Custodianto, on behalf of and deposit with the Trustee) , as described in the related Mortgage Loan Purchase Agreement, the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assignedinstruments:
(i) The the original Mortgage Note, endorsed without recourse in blank by to the order of "Bankers Trust Company, including as trustee" with all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly Person endorsing it to the Company or may show a complete chain of endorsement from the named payee to the CompanyTrustee;
(ii) A counterpart the original recorded Mortgage or, if the original Mortgage has not been returned from the applicable public recording office, a copy of the Proprietary Lease Mortgage certified by the Seller to be a true and complete copy of the Assignment of Proprietary Lease executed in blank or original Mortgage submitted to the originator of the Cooperative Loantitle insurance company for recording;
(iii) The related Cooperative Stock Certificatea duly executed original Assignment of the Mortgage in recordable form to "Bankers Trust Company, together with an undated stock power (as trustee" or other similar instrument) executed in blankto "Bankers Trust Company, as trustee for the holders of DLJ Mortgage Acceptance Corp. Mortgage Pass-Through Certificates";
(iv) A counterpart the original recorded Assignment or Assignments of the recognition agreement Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Cooperative Seller to be a true and complete copy of the interests of the mortgagee with respect original Assignment submitted to the related Cooperative Loantitle insurance company for recording;
(v) The Security Agreementthe original lender's title insurance policy, or, if such policy has not been issued and if the Mortgage Loan was funded through a title insurance company pursuant to escrow or closing instructions precluding the title insurance company or other comparable escrow or closing agent from funding until it is prepared to issue the required title insurance coverage, a copy of such escrow or closing instructions;
(vi) Copies of the original UCC-1 financing statementof any assumption, and any continuation statementsmodification, filed by the originator of such Cooperative Loan as secured party, each with evidence of recording thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Leaseextension or guaranty agreement;
(vii) If applicable, copies the original or a copy of the UCC-3 assignments of preliminary title report (or equivalent thereof) on the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary LeaseMortgage Property;
(viii) An if any of the documents or instruments referred to above was executed assignment on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (which may or by an officer of the applicable title insurance or escrow company) to be a blanket assignment for all Cooperative Loans) true and correct copy of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trusteeoriginal; and
(ix) A UCC-3 assignment from with respect to any High Cost Loan, the Company notice to assignees that the Mortgage Loan is subject to special truth in lending rules, to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment extent required by applicable law. The Seller is obligated pursuant to each Mortgage Loan Purchase Agreement to deliver to the Trustee). Except for any Mortgage which has been : (a) either the original recorded Mortgage, or in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form event such original cannot be delivered by the Company Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording Assignments of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgagethereon, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the CompanySeller, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described or in the two preceding sentences are collectively referred to herein event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the "Document File" with respect to each Mortgage Loan.) The Company shall advise appropriate recording office, in those instances where copies thereof certified by the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously Seller were delivered to the Trustee pursuant to clause (or the Custodianiv) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Eventabove. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior Notwithstanding anything to the date of execution and delivery of contrary contained in this AgreementSection 2.01, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company Seller shall be deemed to have knowledge satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof.
01. While such Assignment to be recorded is being recorded, the Trustee shall retain a photocopy of such Assignment. If any Assignment is lost or returned unrecorded to the Trustee because of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligencedefect therein, the Company has Seller is required to prepare a substitute Assignment or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of cure such written noticedefect, as the case may be, and the Company Trustee shall insert the recording cause such Assignment to be recorded in accordance with this paragraph. The Seller is required under each Mortgage Loan Purchase Agreement to exercise its best reasonable efforts to deliver or filing information in the assignments of the Mortgages or UCC-3 assignments cause to be delivered to the Trustee and shall cause within 120 days of the same to be recorded Closing Date, or filed, at the Company's expense, such other date as is set forth in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a such Mortgage Loan secured by property in Purchase Agreement, the original or a jurisdiction under photocopy of the laws title insurance policy with respect to each of which, on the basis of an Opinion of Counsel reasonably satisfactory related Mortgage Loans assigned to the Trustee pursuant to this Section 2.01. All original documents relating to the Mortgage Loans which are not delivered to the Trustee, to the extent delivered by the Seller to the Master Servicer, are and satisfactory to each Rating Agency (as evidenced shall be held by the Master Servicer in writing), recordation trust for the benefit of such assignment is not necessary to protect the Trustee against discharge on behalf of such the Certificateholders. Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loan Loans by the Company or any valid assertion that any Person other than Depositor to the Trustee has title as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or any rights other obligation of the Depositor. However, in such Mortgage Loan. In the event that the Company fails Mortgage Loans are held to be property of the Depositor, or refuses if for any reason this Agreement is held or deemed to record or file the assignment of Mortgages or UCC-3 financing statement create a security interest in the circumstances 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 abovefor in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by the Seller to the Depositor pursuant to the related Mortgage Loan Purchase Agreements or granted by DLJMCI to the Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall record or cause be deemed to be recorded "possession by the secured party" or filed possession by a purchaser or a person designated by such assignment secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or UCC-3 financing statement 8-321 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee at the expense of Depositor's direction shall, to the Company. In connection extent consistent with any this Agreement, take such recording or filing, the Company shall furnish such documents actions as may be reasonably necessary to accomplish ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause security interest would be deemed to be recorded or filed, a perfected security interest of first priority under applicable law and will be maintained as such throughout the assignments of Mortgages or UCC-3 financing statement at the expense term of the CompanyAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mort Accept Corp Mort Pass Through Cert Series 1995 Qe11)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey to the Trustee Trustee, on behalf of the Trust, without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest accruing thereon after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) all proceeds of any of the foregoing; (v) the rights of the Depositor under the Mortgage Loan Purchase Agreement, including and (vi) all other assets included or to be included in the Trust Fund; PROVIDED, HOWEVER, so long as the Servicer is an FHA Approved Mortgagee, the Commissioner of HUD shall have no obligation to recognize or deal with any person other than the Servicer with respect to FHA Insurance. Such assignment includes all interest and principal received by due to the Company on Depositor or the Servicer after the Cut off Date with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date)Loans. The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver to, and deposit with the Trustee) , or its designated agent (the "Custodian"), the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana "Mortgage File") so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either (A) in blank by or (B) in the Company, including all intervening endorsements showing a complete chain of endorsement from the originator following form: "Pay to the Company; providedorder of JPMorgan Chase Bank, howeveras Trustee under the Pooling and Servicing Agreement, that if such dated as of June 1, 2002, among Credit-Based Asset Servicing and Securitization LLC, Salomon Brothers Mortgage Note is a Confirmatory Securities VII, Inc., Xxxxxx Loan Servicing LP and JPMorgan Chase Bank, Salomon Mortgage Loan Trust, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2002-CB3, without recourse," or with respect to any lost Mortgage Note, such Confirmatory an original Lost Note Affidavit, together with a copy of the related Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the CompanyNote;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the original recorded power of attorney, if the Mortgage Loans (other than with respect was executed pursuant to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies power of the Mortgageattorney, intervening assignments with evidence of Mortgagerecording thereon or, if anysuch Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, title insurance binder and the Primary Insurance Policyhas been lost or is not otherwise available, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any copy of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes Mortgage or power of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeattorney, as the case may be, the Company shall insert the recording or filing information in the assignments certified to be a true and complete copy of the Mortgages original submitted for recording;
(iii) an original Assignment of Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned either (A) in blank or UCC-3 assignments (B) to "JPMorgan Chase Bank, as Trustee under the Pooling and Servicing Agreement, dated as of June 1, 2002, among Credit-Based Asset Servicing and Securitization LLC, Salomon Brothers Mortgage Securities VII, Inc., Xxxxxx Loan Servicing LP and JPMorgan Chase Bank, Salomon Mortgage Loan Trust, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2002-CB3, without recourse";
(iv) an original copy of any intervening assignment of Mortgage showing a complete chain of assignments;
(v) the original or a certified copy of lender's title insurance policy (except with respect to any Mortgage Loan set forth on Exhibit D-2);
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any;
(vii) for each FHA Loan, the original Mortgage Insurance Certificate; and
(viii) for each VA Loan, the original Loan Guaranty Certificate. The Servicer shall within 90 days following the Closing Date, with respect to each Mortgage Loan that is subject to the provisions of the Homeownership and Equity Protection Act of 1994 place a legend on the original Mortgage Note indicating the satisfaction of the provisions of such Act and the regulations issued thereunder, to the effect that the Mortgage Loan is subject to special truth in lending rules. If any of the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Seller to deliver such documents shall be deemed to be
(1) delivery to the Trustee or the Custodian no later than the Closing Date, of a copy of each such document certified by the Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Seller, delivery to the Trustee or the Custodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. The Seller shall deliver or cause to be delivered to the Trustee or the Custodian promptly upon receipt thereof any other 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. Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Seller shall have 120 days to cure such defect or 150 days following the Closing Date, in the case of missing Mortgages or Assignments or deliver such missing document to the Trustee or the Custodian. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03. The Servicer shall cause the Assignments of Mortgage which were delivered in blank to be completed and shall cause all Assignments referred to in Section 2.01(iii) hereof and, to the same extent necessary, in Section 2.01(iv) hereof to be recorded recorded. The Servicer shall be required to deliver such assignments for recording within 30 days of the Closing Date. The Servicer shall furnish the Trustee, or filedits designated agent, at the Company's expense, in the appropriate public office with a copy of each Assignment of Mortgage submitted for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loanrecording. In the event that the Company fails any such Assignment is lost or refuses to record or file the assignment returned unrecorded because of Mortgages or UCC-3 financing statement in the circumstances provided abovea defect therein, the Trustee Servicer shall record promptly have a substitute Assignment prepared or have such defect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. In the event that any Mortgage Note is endorsed in blank as of the Closing Date, promptly following the Closing Date the Servicer shall cause to be recorded or filed completed such assignment or UCC-3 financing statement at endorsements "Pay to the expense order of JPMorgan Chase Bank, as Trustee under the Pooling and Servicing Agreement, dated as of June 1, 2002, among Credit-Based Asset Servicing and Securitization LLC, Salomon Brothers Mortgage Securities VII, Inc., Xxxxxx Loan Servicing LP and JPMorgan Chase Bank, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2002-CB3, without recourse." The Depositor herewith delivers to the Trustee executed copies of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyMortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Solomon Mortgage Ln Tr Ser 2002-Cb3 C-Bass MRT Ln as BCK Cer)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to the Initial Mortgage LoansLoans (and the Subsequent Mortgage Loans on the Subsequent Transfer Date) identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement or Subsequent Mortgage Loan Purchase Agreement (other than the rights under Sections 9 and 10 thereof) and all other assets included or to be included in REMIC I, including all interest and principal received by the Company on or with respect to the Mortgage Loans after the Cut-off Date (other than payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby Depositor will cause the Mortgage Loan Seller to deliver to, and deposit with, the Trustee, or to and with the Custodian, as the duly appointed agent of the Trustee for such purpose, with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall, in accordance with Section 2.11, deliver or cause to be delivered to the Trustee (or to and with the Custodian, on behalf as the duly appointed agent of the Trustee) Trustee for this purpose, with respect to each Subsequent Mortgage Loan, the following documents or instruments (with respect to:
(1) Each to a Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:, a "Mortgage File"):
(i) The the original Mortgage Note, endorsed in the following form: "Pay to the order of The Chase Manhattan Bank, as Trustee for the registered holders of Golden National Mortgage Loan Asset Backed Certificates, Series 1998- GN3, without recourse in blank by the Company, including recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly Person so endorsing to the Company or may show a complete chain of endorsement from the named payee to the CompanyTrustee;
(ii) Any assumption the original Mortgage with evidence of recording thereon, and modification agreementthe original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, certified by the Mortgage Loan Seller to be a true and complete copy of the original submitted for recording with the recorded original to be delivered by the Mortgage Loan Seller to the Custodian (or, if no Custodial Agreement is then in effect, to the Trustee) promptly after receipt thereof;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) original Assignment of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator following form: "The Chase Manhattan Bank, as Trustee for the registered holders of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateGolden National Mortgage Loan Asset Backed Certificates, together with an undated stock power (or other similar instrument) executed in blankSeries 1998-GN3";
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, recorded Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment Assignments of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (other than iii) or, if any such Assignment has been submitted for recording but has not been returned from the applicable public recording office or is not otherwise available, a copy of such Assignment certified by the Mortgage Loan Seller to be a true and complete copy of the original submitted for recording with the recorded original to be delivered by the Mortgage Loan Seller to the Custodian (or, if no Custodial Agreement is then in effect, to the Trustee) promptly after receipt thereof;
(v) the original or copies of each assumption, modification, extension or guarantee agreement, if any;
(vi) the original lender's title insurance policy, together with all endorsements or riders that were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company with the original title policy to be delivered by the Mortgage Loan Seller to the Custodian (or, if no Custodial Agreement is then in effect, to the Trustee), or within 120 days of the Closing Date (or 120 days of the Subsequent Transfer Date, with respect to a Cooperative Subsequent Mortgage Loan); and
(4vii) with respect to any Cooperative Loan that has been assigned to the Companyeach Lender PMI Loan, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and Primary Insurance Policy.
(b) title insurance binders The Depositor shall cause the Mortgage Loan Seller to promptly (and in no event later than five Business Days following the Closing Date (or Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans (other than with respect Loans)) submit or cause to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating be submitted for recording, at no expense to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise Trust Fund or the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statementsrecords, except that the Company need not cause each Assignment referred to be so completed in Sections 2.01(iii) and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loaniv) above. In the event that the Company fails any such Assignment is lost or refuses to record or file the assignment returned unrecorded because of Mortgages or UCC-3 financing statement in the circumstances provided abovea defect therein, the Trustee Depositor shall record promptly prepare or cause to be recorded prepared a substitute Assignment or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, cure or cause to be recorded or filedcured 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 assignments of Mortgages or UCC-3 financing statement at the expense obligations of the CompanyDepositor to cause the Mortgage Loan Seller to deliver such documents shall be deemed to be satisfied upon delivery to the Custodian (or, if no Custodial Agreement is then in effect, to the Trustee), of a photocopy of the original of such Mortgage Note, with a Lost Note Affidavit to follow within one Business Day. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) such public recording office has retained the original of such document, the obligations of the Depositor to cause the Mortgage Loan Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Custodian (or, if no Custodial Agreement is then in effect, to the Trustee), of a copy of each such document certified by the Mortgage Loan Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Mortgage Loan Seller, delivery to the Custodian (or, if no Custodial Agreement is then in effect, to the Trustee), promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. Notice shall be provided to the Trustee and the Rating Agencies by the Mortgage Loan Seller if delivery pursuant to clause (2) above will be made more than 180 days after the Closing Date (or Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans). If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall cause the Mortgage Loan Seller to deliver to the Custodian (or, if no Custodial Agreement is then in effect, to the Trustee), promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall cause the Mortgage Loan Seller to deliver to the Custodian (or, if no Custodial Agreement is then in effect, to the Trustee), promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan.
(d) All original documents relating to the Mortgage Loans that are not delivered to the Custodian as Agent of the Trustee (or, if no Custodial Agreement is then in effect, to the Trustee), are and shall be held by or on behalf of the Mortgage Loan Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Custodian as agent of the Trustee (or, if no Custodial Agreement is then in effect, to the Trustee). Any such original document delivered to or held by the Depositor or the Mortgage Loan 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 Mortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Conveyance of Mortgage Loans. (a) The CompanyEffective as of the Closing Date, concurrently with the execution and delivery of this Agreement, Depositor does hereby transfer, assign, set-over and otherwise convey assign in trust to the Trustee Trustee, without recourse (except as provided herein) recourse, for the benefit of the Certificateholders all the right, title and interest of the Company in Depositor, in, to and to under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, including all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Certificate Account, the Reserve Account and the Interest Reserve Account, (ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III or the Class P Grantor Trust for the benefit of the Class P Certificates. Such assignment includes all interest and principal received by the Company or receivable on or with respect to the Mortgage Loans (other than payments and due after the Cut-Off Date. The transfer of principal and interest due and payable on the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on or before, the Certificates from and all Principal Prepayments received on or before, after the Cut-off Off Date). The Company acknowledges it has sold all right, title transfer and interest in and to the assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the extent provided above terms and that retention conditions of record title of Mortgages (subject to Section 2.01(d) the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement) is for convenience only and , hereby agrees that such Mortgage Loans remain subject to the Company holds record title solely as custodian for the Trustee for benefit terms of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the related Non-Serviced Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance Loan Intercreditor Agreement and, with respect to a each Serviced Pari Passu Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms Loan and the intent of this Agreement. With respect to any Pledged Asset Serviced Companion Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage related Loan pursuant to the Pledged Asset Mortgage Servicing Pair Intercreditor Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignmentthe Depositor's assignment pursuant to Section 2.1(a) above, the Company does Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee (or the Custodian, on behalf remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee) , the following documents Paying Agent, any Custodian, the Master Servicer or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may Special Servicer shall be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except liable for any Mortgage which has been recorded in failure by any Seller or the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) Depositor to comply with the document delivery requirements of the Mortgage to the Trustee; andLoan Purchase Agreements and this Section 2.1(b).
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(ic) The original Mortgage Noteapplicable Seller shall, endorsed without recourse in blank by at the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, and any continuation statements, filed by the originator expense of such Cooperative Loan Seller as secured partyto each of its respective Mortgage Loans, each with evidence of recording promptly (and in any event within 45 days following the receipt thereof, evidencing the interest of the originator in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent cause to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except submitted for recording information. With or filing (except with respect to any Mortgage that has been recorded in the name of MERS or its designees), as the case may be, in the appropriate public office for real property records or UCC financing statements, as appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of "Mortgage File;" provided, if the related Mortgage and UCC financing statements have been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall such assignments will be required to be prepared submitted for recording or delivered; filing and instead, the Company shall applicable Seller has agreed in the applicable Mortgage Loan Purchase Agreement to take all actions as are necessary to cause the Trust Fund Trustee to be shown as as, and the Trustee shall take all actions necessary to confirm that it is shown as, the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. Each such assignment shall reflect that it should be returned by the public recording office to the Trustee following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, and assignment of Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall provide evidence obtain therefrom a certified copy of the recorded original. The applicable Seller shall forward copies thereof to the Trustee (or and the Custodian).
(3) With respect to each Designated LoanSpecial Servicer and, if recorded in the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trusteename of MERS, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder Master Servicer and the Primary Insurance PolicySpecial Servicer, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary within 45 days of the Closing Date. The Company shall promptly furnish to , evidence confirming that the Trustee (or is shown as the Custodian) owner on the documents included in the Document Files (other than record of MERS. If any such documents previously delivered to the Trustee (document or the Custodian) as originals instrument is lost or copies) either (a) upon the written request of the Trustee returned unrecorded or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeunfiled, as the case may be, because of a defect therein, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments applicable Seller shall, pursuant to the Trustee applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall upon receipt thereof cause the same to be duly recorded or filed, at as appropriate. After the Company's expenseapplicable Seller has caused the Trustee to be identified on the records of MERS as the owner of a Mortgage, it shall be the sole responsibility of the Master Servicer to ensure that subsequent relevant events relating to the Mortgage (as, for example, assumptions and partial releases) are promptly and properly registered with MERS throughout the term of the related Mortgage Loan for so long as the Mortgage Loan is an asset of the Trust. The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or before the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached as Exhibit C to the Primary Servicing Agreement in favor of the Trustee and the Special Servicer to empower the Trustee and, in the appropriate public office for real property records event of the failure or UCC financing statements, except that incapacity of the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided aboveTrustee, the Trustee shall record or cause Special Servicer, to be recorded or filed such assignment or UCC-3 financing statement submit for recording, at the expense of the Companyapplicable Seller, any mortgage loan documents required to be recorded as set forth in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee). The Sellers agree to reasonably cooperate with the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such documents for recording, at the related Seller's expense, after the periods set forth above; provided, however, the Trustee shall not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the possession of the Depositor or the Sellers that relate to the Mortgage Loans, Serviced Companion Mortgage Loans or B Notes and that are not required to be a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer or the Primary Servicer on its behalf, on or before the date that is 45 days following the Closing Date and shall be held by the Master Servicer or the Primary Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer or the Primary Servicer by the related Seller, the Servicer Mortgage File, will include, to the extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the following items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, the insurance policies or certificates (as applicable), the property inspection reports, any financial statements on the property, any escrow analysis, the tax bills, the Appraisal, the environmental report, the engineering report, the asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies. Delivery of any of the foregoing documents to the Primary Servicer (or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the Depositor's obligations under this Section 2.1(d). None of the Master Servicer, the Special Servicer or the Primary Servicer shall have any liability for the absence of any of the foregoing items from the Servicing Mortgage File if such item was not delivered by the related Seller.
(e) In connection with any such recording or filingthe Depositor's assignment pursuant to Section 2.1(a) above, the Company Depositor shall furnish such documents deliver to the Trustee on or before the Closing Date a copy of a fully executed counterpart of each Mortgage Loan Purchase Agreement, as may be reasonably necessary in full force and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall contain the representations and warranties made by the Sellers with respect to accomplish such recording or filingeach related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the Principal Loans from Principal, the Principal II Loans from Principal II, the Wells Fargo Loans from Wells Fargo, the BSCMI Loans from BSCMI and the XXXX Loans from MSMC. Notwithstanding the foregoing, at any time the Company may record or file, Txx Xxpositor will deliver or cause to be recorded delivered the original Mortgage Notes (or filedlost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of "Mortgage File") relating to the Principal Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of "Mortgage File") relating to the Principal II Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of "Mortgage File") relating to the Wells Fargo Loans to the Trustee, endorsed as otherwise provided herein, xx effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of "Mortgage File") relating to the BSCMI Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. The Depositor will deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of "Mortgage File") relating to the MSMC Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording of multiple assignment documents, Principal, Principal II, Wells Fargo, BSCMI and MSMC, as applicable, are required under the Mortxxxx Loan Purchase Agreements to deliver Assignments of Mortgages and assignments of Assignments of Leases and assignments of UCC financing statements naming the Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the fact that the assignments shall name the Trustee, on behalf of the Certificateholders, as the assignee, the assignments of Mortgages or UCC-3 financing statement at parties hereto acknowledge and agree that for all purposes the expense Principal Loans shall be deemed to have been transferred from Principal to the Depositor, the Principal II Loans shall be deemed to have been transferred from Principal II to the Depositor, the Wells Fargo Loans shall be deemed to have been transferred from Wells Fxxxx to the Depositor, the BSCMI Loans shall be deemed to have bxxx xransferred from BSCMI to the Depositor and the MSMC Loans shall be deemed to have been transferred from MSMC to the Depositor, and all Mortgage Loans shall be deemed to have been transferred from the Depositor to the Trustee on behalf of the CompanyCertificateholders.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage SecuritiesTrust 2006-Top22)
Conveyance of Mortgage Loans. (a) Each Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of such Seller in and to the applicable Initial Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of the Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the applicable Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The CompanyMaster Servicer confirms that, on behalf of the Sellers, concurrently with the transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. On the Closing Date, CHL, as a Seller, shall deposit $301.24 into the Distribution Account for distribution as part of the Principal Remittance Amount on the first Distribution Date. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor (i) sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Initial Mortgage Loans and (ii) causes the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee. CHL further agrees (x) to cause The Bank of New York to enter into the Corridor Contract Administration Agreement as Corridor Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate corridor transaction evidenced by each Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Corridor Contract Administrator, on the terms and conditions set forth in the Corridor Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, each Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of such Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of any related Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date. Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) Each Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in and to the Mortgage LoansCertificateholders, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and to the Mortgage Loans portion of the Trust Fund not otherwise conveyed to the Trustee to the extent provided above and that retention of record title of Mortgages (subject pursuant to Section 2.01(d2.01(a) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanb).
(bd) In connection with such transfer and assignment, On any Business Day during the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank Funding Period designated by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage CHL to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from Sellers, the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease Depositor and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateTrustee shall complete, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security execute and deliver a Subsequent Transfer Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with After the execution and delivery of this such Subsequent Transfer Agreement, due to a delay in connection with recording of on the MortgageSubsequent Transfer Date, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required set aside in the Pre-Funding Account an amount equal to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian)Subsequent Transfer Date Purchase Amount.
(3e) With respect to each Designated Loan, The transfer of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with satisfaction of each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) of the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loansconditions:
(1) the Mortgage with evidence Trustee, the Underwriters and the Certificate Insurer will be provided Opinions of recording indicated thereon (other than Counsel addressed to the Rating Agencies as with respect to a Cooperative Loanthe sale of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies and the Certificate Insurer with respect to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered as provided in Section 2.01(f);
(2) a copy the execution and delivery of such Subsequent Transfer Agreement or conveyance of the title insurance policy related Subsequent Mortgage Loans does not result in a reduction or withdrawal of any ratings assigned to the Certificates by the Rating Agencies (other than with respect without regard to a Cooperative Loanthe Certificate Insurance Policy, in the case of the Class A Certificates);
(3) with respect to any Mortgage that has been assigned the Depositor shall deliver to the CompanyTrustee an Officer's Certificate confirming the satisfaction of each of the conditions set forth in this Section 2.01(e) required to be satisfied by such Subsequent Transfer Date;
(4) each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to it under this Agreement, the related recorded intervening assignment or assignments of Mortgageprovided, showing a complete chain of assignment from the originator to the Company (other than however, that with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing breach of a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) representation and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than warranty with respect to a Cooperative LoanSubsequent Mortgage Loan set forth in this clause (4). The Company , the obligation under Section 2.03(f) of this Agreement of the applicable Seller, to cure, repurchase or replace such Subsequent Mortgage Loan shall also retain constitute the sole remedy against such Seller respecting such breach available to Certificateholders, the Depositor, the Certificate Insurer or the Trustee;
(5) the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were selected in its files a manner reasonably believed not to be adverse to the Primary Insurance Policy evidencing any primary mortgage insurance relating to interests of the Certificateholders or the Certificate Insurer;
(6) no Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was 30 or more days delinquent as of the related Cut-off Date;
(7) following the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer Date, the characteristics of the Mortgage Loans during will not vary by more than the period when amount specified below from the related insurance is in force. (The copies characteristics listed below; provided that for the purpose of making such calculations, the characteristics for any Initial Mortgage Loan made will be taken as of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Initial Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer characteristics for any Subsequent Mortgage Loans will be taken as of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Subsequent Cut-off Date;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CWHEQ Home Equity Loan Trust, Series 2006-S4)
Conveyance of Mortgage Loans. (a) It is the intention of the parties hereto that a common law trust be established pursuant to this Agreement and further such trust be designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-3". Wells Fargo Bank, N.A. is hereby appointed, and does hereby agree to act, xx Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the exclusive use and benefit of all present and future Certificateholders. It is not intended that this Agreement create a partnership or a joint-stock association.
(b) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-sell, set over and otherwise convey to the Trustee Trustee, in trust, without recourse recourse, for the benefit of the Certificateholders (except and for the benefit of the other parties to this Agreement as provided hereintheir respective interests may appear) and the One Stamford Forum Note B Holder, all the right, title and interest of the Company in Depositor in, to and to the Mortgage Loans, including all interest and principal received by the Company on or with respect to under (i) the Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files, (ii) the Mortgage Loan Purchase and Sale Agreement and (iii) all other assets included or to be included in the Trust Fund. Such assignment includes (i) the Mortgage Loans that from time to time are subject to this Agreement, all interest accrued on the Mortgage Loans on and after the Cut-off Date and all principal payments received on the Mortgage Loans after the Cut-off Date (other than payments of principal and interest payments due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date, which shall belong and be promptly remitted to the Mortgage Loan Seller). The Company acknowledges it has sold , together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired in respect of a Mortgage Loan; (iii) such funds or assets that from time to time are deposited into the Certificate Account, the REMIC I Distribution Account, the REMIC II Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Excess Liquidation Proceeds Account and the REO Account (if established), and (iv) in the case of a Mortgage Loan included in the Serviced Whole Loan, all the right, title and interest of the Depositor in the related Intercreditor Agreement. This conveyance is subject to the rights of the Sub-Servicers pursuant to the Sub-Servicing Agreements, which rights are subject in any event to this Agreement. Under United States generally accepted accounting principles, the Depositor shall report: (i) its acquisition of the Mortgage Loans from the Mortgage Loan Seller, pursuant to the Mortgage Loan Purchase and to Sale Agreement, as a purchase of such Mortgage Loans from the Mortgage Loan Seller; and (ii) its transfer of the Mortgage Loans to the Trustee Trustee, pursuant to the extent provided above and that retention this Section 2.01(b), as a sale of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the such Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or fileDepositor shall cause all of its records to reflect such an acquisition as a purchase and such a transfer as a sale (in each case, or cause as opposed to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companya secured loan).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-3)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-set over and otherwise convey to the Trustee Trustee, on behalf of the Trust, without recourse (except as provided herein) for the benefit of the Certificateholders all the right, title and interest of the Company Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest accruing thereon after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) all proceeds of any of the foregoing; (v) the rights of the Depositor under the Mortgage Loan Purchase Agreement, including and (vi) all other assets included or to be included in the Trust Fund; provided, however, so long as the Servicer is an FHA Approved Mortgagee, the Commissioner of HUD shall have no obligation to recognize or deal with any person other than the Servicer with respect to FHA Insurance. Such assignment includes all interest and principal received by due to the Company on Depositor or the Servicer after the Cut-off Date with respect to the Mortgage Loans (other than payments of principal and interest due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, the Cut-off Date)Loans. The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver to, and deposit with the Trustee) , or its designated agent (the "Custodian"), the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana "Mortgage File") so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either (A) in blank by or (B) in the Company, including all intervening endorsements showing a complete chain of endorsement from the originator following form: "Pay to the Company; providedorder of U.S. Bank National Association, howeveras Trustee under the Pooling and Servicing Agreement, that if such dated as of October 1, 2002, among Credit-Based Asset Servicing and Securitization LLC, Asset Backed Funding Corporation, Litton Loan Servicing LP and U.S. Bank National Association, X-XXSS Mortgage Note is a Confirmatory Loan Asset-Backed Certificates, Series 2002-CB5, without recourse," or with respect to any lost Mortgage Note, such Confirmatory an original Lost Note Affidavit, together with a copy of the related Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the CompanyNote;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the original recorded power of attorney, if the Mortgage Loans (other than with respect was executed pursuant to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies power of the Mortgageattorney, intervening assignments with evidence of Mortgagerecording thereon or, if anysuch Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, title insurance binder and the Primary Insurance Policyhas been lost or is not otherwise available, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any copy of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes Mortgage or power of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written noticeattorney, as the case may be, certified to be a true and complete copy of the Company original submitted for recording;
(iii) an original Assignment of Mortgage, in form and substance acceptable for recording. The Mortgage shall insert be assigned either (A) in blank or (B) to "U.S. Bank National Association, as Trustee under the recording Pooling and Servicing Agreement, dated as of October 1, 2002, among Credit-Based Asset Servicing and Securitization LLC, Asset Backed Funding Corporation, Litton Loan Servicing LP and U.S. Bank National Association, X-XXSS Mortgage Loan Asset-Backed Certificates, Series 2002-CB5, without recourse";
(iv) an original copy of any intervening assignment of Mortgage showing a complete chain of assignments;
(v) the original or filing information a certified copy of lender's title insurance policy except with respect to those Mortgage Loans identified on Exhibit U hereto;
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any;
(vii) for each FHA Loan, the original Mortgage Insurance Certificate; and
(viii) for each VA Loan, the original Loan Guaranty Certificate. The Trustee agrees to execute and deliver (or cause the Custodian to execute and deliver) to the Depositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the assignments form attached as Exhibit F-3 hereto. The Servicer shall within 90 days following the Closing Date, with respect to each Mortgage Loan that is subject to the provisions of the Mortgages or UCC-3 assignments Homeownership and Equity Protection Act of 1994 place a legend on the original Mortgage Note indicating the satisfaction of the provisions of such Act and the regulations issued thereunder, to the Trustee effect that the Mortgage Loan is subject to special truth in lending rules. The Servicer shall promptly (and shall in no event later than thirty days following the Closing Date) submit or cause the same to be recorded or filedsubmitted for recording, at the CompanyServicer's expenseexpense and at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such Assignment is lost or UCC financing statementsreturned unrecorded because of a defect therein, except the Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. If any of the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee or the Custodian no later than the Closing Date, of a copy of each such document certified by the Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Company Seller, delivery to the Trustee or the Custodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. The Seller shall deliver or cause to be delivered to the Trustee or the Custodian promptly upon receipt thereof any other 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. Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Seller shall have 120 days to cure such defect or 150 days following the Closing Date, in the case of missing Mortgages or Assignments or deliver such missing document to the Trustee or the Custodian. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03. The Seller shall cause the Assignments of Mortgage which were delivered in blank to be completed and shall cause all Assignments referred to in Section 2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv) hereof to be recorded; provided, however, the Seller need not cause to be so completed and recorded any assignment of mortgage Assignment which relates to a Mortgage Loan secured by property in a any jurisdiction under the laws of which, on the basis of as evidenced by an Opinion of Counsel reasonably satisfactory delivered by the Seller to the Trustee and satisfactory to each the Rating Agency (as evidenced in writing)Agencies, the recordation of such assignment is not necessary to protect the Trustee against discharge Trustee's interest, on behalf of such Mortgage Loan by the Company or any valid assertion that any Person other than Trust, in the Trustee has title to or any rights in such related Mortgage Loan. The Seller shall be required to deliver such assignments for recording within 30 days of the Closing Date. The Seller shall furnish the Trustee, or its designated agent, with a copy of each assignment of Mortgage submitted for recording. In the event that the Company fails any such Assignment is lost or refuses to record or file the assignment returned unrecorded because of Mortgages or UCC-3 financing statement in the circumstances provided abovea defect therein, the Trustee Seller shall record promptly have a substitute Assignment prepared or have such defect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. In the event that any Mortgage Note is endorsed in blank as of the Closing Date, promptly following the Closing Date the Seller shall cause to be recorded or filed completed such assignment or UCC-3 financing statement at endorsements "Pay to the expense order of U.S. Bank National Association, as Trustee under the Pooling and Servicing Agreement, dated as of October 1, 2002, among Credit-Based Asset Servicing and Securitization LLC, Asset Backed Funding Corporation, Litton Loan Servicing LP and U.S. Bank National Association, C-BASS Morxxxxx Loan Asset-Backed Certificates, Series 2002-CB5, without recourse." The Depositor herewith delivers to the Trustee executed copies of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyMortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (C Bass Mortgage Loan Asset Backed Cert Series 2002-Cb5)
Conveyance of Mortgage Loans. (a) Each Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of such Seller in and to the applicable Initial Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of the Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the applicable Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The CompanyMaster Servicer confirms that, on behalf of the Sellers, concurrently with the transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor (i) sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Initial Mortgage Loans, (ii) causes the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee and (iii) causes the Credit Insurer to deliver the Credit Insurance Policy to the Trustee. CHL further agrees (x) to cause The Bank of New York to enter into the Corridor Contract Administration Agreement as Corridor Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate corridor transaction evidenced by each Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Corridor Contract Administrator, on the terms and conditions set forth in the Corridor Contract Assignment Agreement. In addition, CHL further agrees (x) to cause The Bank of New York to enter into the Swap Contract Administration Agreement as Swap Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate swap transaction evidenced by the Swap Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Swap Contract Administrator, on the terms and conditions set forth in the Swap Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, each Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of such Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of any related Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date. Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) Each Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in Certificateholders and to the Mortgage LoansCertificate Insurer, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and to the Mortgage Loans portion of the Trust Fund not otherwise conveyed to the Trustee to the extent provided above and that retention of record title of Mortgages (subject pursuant to Section 2.01(d2.01(a) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanb).
(bd) In connection with such transfer and assignment, On any Business Day during the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank Funding Period designated by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage CHL to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from Sellers, the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease Depositor and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateTrustee shall complete, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security execute and deliver a Subsequent Transfer Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with After the execution and delivery of this such Subsequent Transfer Agreement, due to a delay in connection with recording of on the MortgageSubsequent Transfer Date, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required set aside in the Pre-Funding Account an amount equal to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian)Subsequent Transfer Date Purchase Amount.
(3e) With respect to each Designated Loan, The transfer of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with satisfaction of each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) of the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loansconditions:
(1) the Mortgage with evidence Trustee, the Underwriters and the Certificate Insurer will be provided Opinions of recording indicated thereon (other than Counsel addressed to the Rating Agencies and the Certificate Insurer as with respect to a Cooperative Loanthe sale of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies and the Certificate Insurer with respect to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered as provided in Section 2.01(f);
(2) a copy the execution and delivery of such Subsequent Transfer Agreement or conveyance of the title insurance policy related Subsequent Mortgage Loans does not result in a reduction or withdrawal of any ratings assigned to the Certificates by the Rating Agencies (other than with respect without regard to a Cooperative Loanthe Certificate Insurance Policy, in the case of the Class A Certificates);
(3) with respect to any Mortgage that has been assigned the Depositor shall deliver to the CompanyTrustee an Officer's Certificate confirming the satisfaction of each of the conditions set forth in this Section 2.01(e) required to be satisfied by such Subsequent Transfer Date;
(4) each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to it under this Agreement, the related recorded intervening assignment or assignments of Mortgageprovided, showing a complete chain of assignment from the originator to the Company (other than however, that with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing breach of a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) representation and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than warranty with respect to a Cooperative LoanSubsequent Mortgage Loan set forth in this clause (4). The Company , the obligation under Section 2.03(f) of this Agreement of the applicable Seller, to cure, repurchase or replace such Subsequent Mortgage Loan shall also retain constitute the sole remedy against such Seller respecting such breach available to Certificateholders, the Depositor, the Certificate Insurer or the Trustee;
(5) the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were selected in its files a manner reasonably believed not to be adverse to the Primary Insurance Policy evidencing any primary mortgage insurance relating to interests of the Certificateholders or the Certificate Insurer;
(6) no Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was 30 or more days delinquent as of the related Cut-off Date;
(7) following the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer Date, the characteristics of the Mortgage Loans during will not vary by more than the period when amount specified below from the related insurance is in force. (The copies characteristics listed below; provided that for the purpose of making such calculations, the characteristics for any Initial Mortgage Loan made will be taken as of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Initial Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer characteristics for any Subsequent Mortgage Loans will be taken as of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Subsequent Cut-off Date;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CWHEQ Home Equity Loan Trust, Series 2007-S2)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Initial Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest due thereon after the Initial Cut-off Date and all collections in respect of interest and principal due after the Initial Cut-off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and to the proceeds of the Distribution Account; (iii) any real property that secured each such Initial Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; (vi) any such amounts as may be deposited into and held by the Securities Administrator in the Prefunding Account and (vii) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor or the Master Servicer after the Initial Cut-off Date with respect to the Initial Mortgage Loans. In exchange for such transfer and assignment, the Depositor shall receive the Certificates. Concurrently with the execution of this Agreement, the Swap Agreement and the Basis Risk Cap Agreement shall be delivered to the Securities Administrator. In connection therewith, the Depositor hereby directs the Securities Administrator (solely in its capacity as such) and the Securities Administrator is hereby authorized to execute and deliver the Swap Agreement (on behalf of the Supplemental Interest Trust) and the Basis Risk Cap Agreement for the benefit of the Certificateholders. The Seller, the Securities Administrator, the Depositor and the Certificateholders (by their acceptance of such Certificates) acknowledge and agree that (i) the Securities Administrator is executing and delivering the Swap Agreement solely in its capacity as Securities Administrator of the Supplemental Interest Trust and the Trust Fund, and not in its individual capacity and (ii) the Securities Administrator is executing and delivering the Basis Risk Cap Agreement solely in its capacity as Securities Administrator of the Trust Fund, and not in its individual capacity. The Securities Administrator shall have no duty or responsibility to enter into any other swap agreement or any other basis risk cap agreement upon the expiration or termination of the Swap Agreement or the Basis Risk Cap Agreement. It is agreed and understood by the Depositor, the Seller and the Trustee that it is not intended that any Mortgage Loan be included in the Trust Fund that is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, effective as of November 27, 2003, or The Home Loan Protection Act of New Mexico, effective as of January 1, 2004, or that is a “High Cost Home Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act, effective as of November 7, 2004, or that is an “Indiana High Cost Home Mortgage Loan” as defined in the Indiana High Cost Home Loan Act, effective as of January 1, 2005. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreement to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under the Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of the Mortgage Loan documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HarborView 2007-5)
Conveyance of Mortgage Loans. (a) Each Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of such Seller in and to the applicable Initial Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of the Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the applicable Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The CompanyMaster Servicer confirms that, on behalf of the Sellers, concurrently with the transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor (i) sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Initial Mortgage Loans and (ii) causes the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee. CHL further agrees (x) to cause The Bank of New York to enter into the Corridor Contract Administration Agreement as Corridor Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate corridor transaction evidenced by each Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Corridor Contract Administrator, on the terms and conditions set forth in the Corridor Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, each Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of such Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of any related Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date. Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) Each Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in and to the Mortgage LoansCertificateholders, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and to the Mortgage Loans portion of the Trust Fund not otherwise conveyed to the Trustee to the extent provided above and that retention of record title of Mortgages (subject pursuant to Section 2.01(d2.01(a) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanb).
(bd) In connection with such transfer and assignment, On any Business Day during the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank Funding Period designated by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage CHL to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from Sellers, the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease Depositor and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateTrustee shall complete, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security execute and deliver a Subsequent Transfer Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with After the execution and delivery of this such Subsequent Transfer Agreement, due to a delay in connection with recording of on the MortgageSubsequent Transfer Date, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required set aside in the Pre-Funding Account an amount equal to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian)Subsequent Transfer Date Purchase Amount.
(3e) With respect to each Designated Loan, The transfer of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with satisfaction of each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) of the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loansconditions:
(1) the Mortgage with evidence Trustee, the Underwriters and the Certificate Insurer will be provided Opinions of recording indicated thereon (other than Counsel addressed to the Rating Agencies as with respect to a Cooperative Loanthe sale of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies and the Certificate Insurer with respect to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered as provided in Section 2.01(f);
(2) a copy the execution and delivery of such Subsequent Transfer Agreement or conveyance of the title insurance policy related Subsequent Mortgage Loans does not result in a reduction or withdrawal of any ratings assigned to the Certificates by the Rating Agencies (other than with respect without regard to a Cooperative Loanthe Certificate Insurance Policy, in the case of the Class A Certificates);
(3) with respect to any Mortgage that has been assigned the Depositor shall deliver to the CompanyTrustee and the Certificate Insurer an Officer's Certificate confirming the satisfaction of each of the conditions set forth in this Section 2.01(e) required to be satisfied by such Subsequent Transfer Date;
(4) each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to it under this Agreement, the related recorded intervening assignment or assignments of Mortgageprovided, showing a complete chain of assignment from the originator to the Company (other than however, that with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing breach of a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) representation and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than warranty with respect to a Cooperative LoanSubsequent Mortgage Loan set forth in this clause (4). The Company , the obligation under Section 2.03(e) of this Agreement of the applicable Seller, to cure, repurchase or replace such Subsequent Mortgage Loan shall also retain constitute the sole remedy against such Seller respecting such breach available to Certificateholders, the Depositor, the Certificate Insurer or the Trustee;
(5) the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were selected in its files a manner reasonably believed not to be adverse to the Primary Insurance Policy evidencing any primary mortgage insurance relating to interests of the Certificateholders or the Certificate Insurer;
(6) no Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was 30 or more days delinquent;
(7) following the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer Date, the characteristics of the Mortgage Loans during will not vary by more than the period when amount specified below from the related insurance is in force. (The copies characteristics listed below; provided that for the purpose of making such calculations, the characteristics for any Initial Mortgage Loan made will be taken as of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Initial Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer characteristics for any Subsequent Mortgage Loans will be taken as of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Subsequent Cut-off Date;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CWHEQ Home Equity Loan Trust, Series 2006-S2)
Conveyance of Mortgage Loans. (a) It is the intention of the parties hereto that a common law trust be established pursuant to this Agreement and further such trust be designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-6". Wells Fargo Bank, N.A. is hereby appointed, and does hereby agree to acx, xx Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the exclusive use and benefit of all present and future Certificateholders. It is not intended that this Agreement create a partnership or a joint-stock association.
(b) The CompanyDepositor, concurrently with the execution and delivery of this Agreementhereof, does hereby transfer, assign, set-sell, set over and otherwise convey to the Trustee Trustee, in trust, without recourse recourse, for the benefit of the Certificateholders (except and for the benefit of the other parties to this Agreement as provided hereintheir respective interests may appear) and, in the case of a Whole Loan, the related Companion Loan Holder all the right, title and interest of the Company in Depositor in, to and to the Mortgage Loans, including all interest and principal received by the Company on or with respect to under: (i) the Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files; (ii) the Mortgage Loan Purchase and Sale Agreements; and (iii) all other assets included or to be included in the Trust Fund. Such assignment includes (A) the Mortgage Loans that from time to time are subject to this Agreement, all interest accrued on the Mortgage Loans on and after the Cut-off Date and all principal payments received on the Mortgage Loans after the Cut-off Date (other than payments of principal and interest payments due and payable on the Mortgage Loans on or before, and all Principal Prepayments received on or before, before the Cut-off Date, which shall belong and be promptly remitted to the applicable Mortgage Loan Seller). The Company acknowledges it has sold , together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the related Mortgage Loan Seller; (B) any REO Property acquired in respect of a Mortgage Loan; (C) such funds or assets that from time to time are deposited into the Certificate Account, the REMIC I Distribution Account, the REMIC II Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Excess Liquidation Proceeds Account and the REO Account (if established); and (D) in the case of a Mortgage Loan included in a Whole Loan, all the right, title and interest of the Depositor in the related Intercreditor Agreement. In connection with the transfer and assignment set forth in this Section 2.01, the Depositor shall make a cash deposit to the Certificate Account in an amount equal to the Interest Deposit Amounts. The foregoing conveyances are subject to the rights of the Sub-Servicers pursuant to the Sub-Servicing Agreements, which rights are subject in any event to this Agreement. Under United States generally accepted accounting principles, the Depositor shall report: (i) its acquisition of the Mortgage Loans from the Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and Sale Agreements, as a purchase of such Mortgage Loans from the Mortgage Loan Sellers; and (ii) its transfer of the Mortgage Loans to the Trustee Trustee, pursuant to the extent provided above and that retention this Section 2.01(b), as a sale of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the such Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or fileDepositor shall cause all of its records to reflect such acquisition as a purchase and such transfer as a sale (in each case, or cause as opposed to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Companya secured loan).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-6)
Conveyance of Mortgage Loans. (a) The CompanyDepositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor or the Master Servicer after the Cut-Off Date with respect to the Mortgage Loans. In exchange for such transfer and assignment, the Depositor shall receive the Certificates. The Depositor hereby directs the Securities Administrator to execute, not in its individual capacity, but solely as Securities Administrator on behalf of the Trust, and deliver the Yield Maintenance Agreements. Notwithstanding anything provided herein to the contrary, each of the parties hereto agrees and acknowledges that the Servicing Rights Owner is the owner of the Servicing Rights with respect to the Mortgage Loans, and that, notwithstanding the transfer, conveyance and assignment of the Mortgage Loans from the Depositor to the Trustee pursuant to this Agreement, the Servicing Rights Owner remains the sole and exclusive owner of the Servicing Rights with respect to the Mortgage Loans.
(b) Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreement to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under the Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of defective Mortgage Loan documents. The foregoing sale, transfer, assignassignment, set-over over, deposit and otherwise convey conveyance does not and is not intended to result in creation or assumption by the Trustee without recourse (except as provided herein) all the right, title and interest of any obligation of the Company Depositor, the Seller or any other Person in and to the Mortgage Loans, including all interest and principal received by the Company on or connection with respect to the Mortgage Loans (or any other than payments of principal and interest due and payable on the Mortgage Loans on agreement or before, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (relating thereto except as provided specifically set forth herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(bc) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the CustodianSeller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01, to, and deposit with the Trustee) , or the Custodian as its designated agent, the following documents or instruments with respect to:
(1) Each to each Mortgage Loan (other than any Cooperative Loan or Designated Loana “Mortgage File”) so transferred and assigned:
(i) The the original Mortgage Note, endorsed without recourse either on its face or by allonge attached thereto in blank by or in the following form: “Pay to the order of Deutsche Bank National Trust Company, including all intervening endorsements showing as Trustee for DSLA Mortgage Loan Trust 2005-AR4, Mortgage Pass-Through Certificates, Series 2005-AR4, without recourse”, or with respect to any lost Mortgage Note, an original Lost Note Affidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a complete chain copy of endorsement from the originator to the Companyrelated mortgage note; provided, however, that if such substitutions of Lost Note Affidavits for original Mortgage Note Notes may occur only with respect to Mortgage Loans the aggregate Cut-Off Date Principal Balance of which is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly less than or equal to 2% of the Company or may show a complete chain of endorsement from the named payee to the CompanyCut-Off Date Aggregate Principal Balance;
(ii) Any assumption except as provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, and modification agreementin the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN for that Mortgage Loan and either language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment to MERS, in each case 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 or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, together with an Officer’s Certificate of the Seller certifying that the copy of such Mortgage delivered to the Trustee (or its Custodian) is a true copy and that the original of such Mortgage has been forwarded to the public recording office, or, in the case of a Mortgage that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee and the Depositor that an original recorded Mortgage is not required to enforce the Trustee’s interest in the Mortgage Loan;
(iii) Except for the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any Mortgage assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been recorded delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an officer’s certificate of the Seller, title company, escrow agent or closing attorney certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its Custodian) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office;
(iv) in the name case of each Mortgage Loan that is not a MERS or its designeeMortgage Loan, an assignment original Assignment of Mortgage, in recordable form and substance acceptable for recording. The Mortgage shall be assigned to “Deutsche Bank National Trust Company, as Trustee for DSLA Mortgage Loan Trust 2005-AR4, Mortgage Pass-Through Certificates, Series 2005-AR4, without recourse;”
(which may be included v) in the case of each Mortgage Loan that is not a blanket assignment or MERS Mortgage Loan, an original copy of any intervening Assignment of Mortgage showing a complete chain of assignments, or, in the case of an intervening Assignment of Mortgage that has been lost, a written Opinion of Counsel (delivered at the Seller’s expense) acceptable to the Trustee that such original intervening Assignment of Mortgage is not required to enforce the Trustee’s interest in the Mortgage to the Trustee; andLoans;
(2vi) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:the original Primary Insurance Policy, if any, or certificate, if any;
(ivii) The the original or a certified copy of lender’s title insurance policy.
(d) Assignments of each Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator with respect to the Companyeach Mortgage Loan that is not a MERS Mortgage Loan shall be recorded; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Noteassignments need not be recorded if, such Confirmatory Mortgage Note may in the Opinion of Counsel (which must be payable directly to from Independent Counsel and not at the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart expense of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank Trust or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned acceptable to the Trustee, the Company Rating Agency and the Master Servicer, recording in such states is not required to protect the Trustee’s interest in the related Mortgage Loans; provided, further, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall deliver to be submitted for recording by the Trustee Seller (or the Custodian) Seller will cause the following documents or instruments as promptly as practicableServicer to submit each such assignment for recording), but in any event within 30 days, after receipt by at the Company of all such documents cost and instruments for all expense of the outstanding Mortgage Loans:
Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
Majority Certificateholders, (2) the occurrence of a copy of bankruptcy or insolvency relating to the title insurance policy (other than with respect to a Cooperative Loan);
Seller or the Depositor, or (3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments one Assignment of Mortgage, showing the occurrence of a complete chain of assignment from the originator bankruptcy, insolvency or foreclosure relating to the Company Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (other but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), and to the extent recordation is required under the laws of the applicable jurisdiction to protect the Trustee’s and the Certificateholders’ interest in the related Mortgage Loan, the Seller shall properly record (or the Seller will cause the Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Master Servicer and the Trustee), in each public recording office where the related Mortgages are recorded, each assignment with respect to a Cooperative Mortgage Loan that is not a MERS Mortgage Loan); and.
(4e) with respect The Trustee agrees to any Cooperative Loan that has been assigned execute and deliver to the CompanyDepositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the related filed intervening UCC-3 financing statements form attached as Exhibit G-1 hereto.
(f) If the original lender’s title insurance policy, or a certified copy thereof, was not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery2.01(x) above, the Company Seller shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect deliver or cause to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery be delivered to the Trustee (and the Custodian) shall not have occurred on original or before a copy of a written commitment or interim binder or preliminary report of title issued by the first anniversary title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee, promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Company Seller shall promptly furnish deliver or cause to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously be delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request , acting on behalf of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge Trustee, promptly upon receipt thereof, any other documents constituting a part of a Trigger Event. The Trustee shall have no obligation Mortgage File received with respect to request delivery any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of any Mortgage Loan.
(g) For Mortgage Loans which (if any) that have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the CompanyClosing Date, in lieu of the Seller delivering the above documents documents, the Master Servicer shall deliver to the Custodian on behalf of the Trustee, prior to the first Distribution Date, an Officer’s Certificate, based on information provided to the Master Servicer from the Servicer, which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account have been so deposited. All original documents that are not delivered to the Custodian on behalf of the Trust shall be held by the Servicer in trust for the Trustee, for the benefit of the Trust and the Certificateholders.
(h) The Depositor herewith delivers to the Trustee a certification of a Servicing Officer an executed copy of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the CompanyPurchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DSLA Mortgage Loan Trust 2005-Ar4)
Conveyance of Mortgage Loans. (a) The CompanyIn consideration of the Trustee's delivery to or upon the order of the Transferor of the Certificates in an aggregate amount equal to the Cut-off Date Pool Balance, concurrently with the execution and delivery of this Agreement, Transferor does hereby transfer, assign, set-set over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company Transferor in and to (i)(A) the Cut-off Date Trust Balance of each Mortgage LoansLoan, including any Additional Balance arising during the Managed Amortization Period under each Mortgage Loan subsequent to the related Cut-off Date and assigned and transfered to the Trustee hereunder, all payments of interest and principal thereon, from whatever source derived, which are received by on or with respect to each Mortgage Loan on or after the Company Cut-off Date and are allocable to the Trust Balance (but not including all accrued interest and principal due 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, and all Principal Prepayments received on or before, for Interest Periods prior to the Cut-off Date), (B) the Certificate Account, and (C) the Certificate Insurance Policy, (ii) to the extent of the Trust Balances of the Mortgage Loans and interest accrued thereon, as provided in this Agreement, (A) any Mortgaged Properties converted to ownership through foreclosure or deed in lieu or otherwise, (B) any insurance policies related to the Mortgage Loans, and (C) the related Mortgages, Loan Agreements and other Mortgage File documents for the Mortgage Loans; and (iii) the proceeds of each of the foregoing. The Company Transferor and the Trustee acknowledge that the Prior Trusts have rights, interests, power and authority with respect to the Common Mortgage Loans and the related Loan Agreements, Mortgages and other Mortgage File documents to the extent provided in the Prior Trust Pooling and Servicing Agreements. The Servicer acknowledges it has that, pursuant to the terms of the Loan Agreements, amounts received from or on behalf of the Mortgagor of a Common Mortgage Loan which, at the time of receipt, are treated as principal collections pursuant to the related Loan Agreement, will be applied in reduction of the principal balance of such Common Mortgage Loan sold to one or more of the Prior Trusts as provided in the Prior Trust Pooling and Servicing Agreements before such collections may be applied as Principal Collections under this Agreement. Notwithstanding the characterization of the Investor Certificates as debt for federal, state and local income and franchise tax purposes, the parties hereto intend to treat the transfer of the Mortgage Loans as provided herein as a sale for non-tax purposes from the Mortgage Loan Seller to the Transferor and from the Transferor to the Trust of all of their right, title and interest in and to the Mortgage Loans and other property described above. In the event the transaction set forth herein is deemed not to be a sale for the purposes described in the preceding sentence, the Mortgage Loan Seller and the Transferor hereby grant to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership a first priority security interest in all of the Mortgage Loans by Loan Seller's and the Trustee Transferor's right, title and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to Mortgage Loans identified on the Additional Collateral supporting any Pledged Asset Mortgage LoanLoan Schedule on the Cut-off Date, (ii) its security interest in and Mortgage Loans added to any Additional Collateralthe Mortgage Loan Schedule from time to time, (iii) its right to receive payments all property included in respect the Trust Fund, (iv) and all proceeds of any Pledged Asset of the foregoing; and this Agreement shall constitute a security agreement under applicable law. In connection with such assignment, transfer and conveyance of the Trust Fund, as promptly as practicable but in no event later than 10 days following the Closing Date, (i) the Mortgage Loan pursuant to Seller will file in the Pledged Asset appropriate office in the State in which the principal place of business of the Mortgage Servicing AgreementLoan Seller is located a UCC-1 financing statement executed by the Mortgage Loan Seller as debtor, naming the Transferor as secured party and listing as collateral the Mortgage Loans identified on the Mortgage Loan Schedule and all property constituting the Trust Fund, and (ivii) its rights the Transferor will file in the appropriate office in the State in which the principal place of business of the Transferor is located a UCC-1 financing statement executed by the Transferor as beneficiary under debtor, naming the Surety Bond in respect of any Pledged Asset Trustee as secured party and listing as collateral the Mortgage LoanLoans identified on the Mortgage Loan Schedule and all property constituting the Trust Fund. In addition, connection with respect to any CashSaver Mortgage Loansuch filings, the Company does hereby transfer, assign, set-over Mortgage Loan Seller and otherwise convey the Transferor agree that they shall each cause to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in be filed all necessary continuation statements thereof and to any Additional Collateral take or cause to be taken such actions and (iii) its right execute such documents as are necessary to receive payments perfect and protect the Certificateholders' interests in respect of any CashSaver the Mortgage LoanLoans and the proceeds thereof allocable thereto.
(b) In connection with such the foregoing assignment, transfer and assignmentconveyance by the Transferor, the Company does hereby deliver to Servicer acknowledges that it is holding as custodian for the Trustee (or the Custodian, on behalf of the Trustee) applicable Prior Trustee the following documents or instruments with respect to:
(1) Each to each Mortgage Loan so assigned and transferred (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full on or after the Cut-off Date and prior to the date of the execution and delivery of this Agreement):
(i) The original Loan Agreement;
(ii) The related Mortgage with evidence of recording indicated thereon; and
(iii) As to each Mortgage Loan With Title Insurance, evidence of such insurance (to the extent such evidence is included in the related Mortgage File). Except as hereinafter provided, the Company, in lieu Servicer shall be entitled to maintain possession of delivering all of the above foregoing documents and instruments and shall not be required to deliver any of them to the Trustee. In the event, herewith delivers however, that possession of any of such documents or instruments is required by any person (including the Trustee) acting as successor servicer pursuant to Section 7.04 in order to carry out the duties of Servicer hereunder, then such successor shall be entitled to request delivery of such documents or instruments by the Servicer and to retain such documents or instruments for as long as necessary for servicing pur- poses. Any such documents or instruments shall be returned to the Servicer (unless returned to the related Mortgagor in connection with the payment in full of the related Mortgage Loan) when possession thereof is no longer required.
(c) The Servicer further confirms to the Trustee a certification that it has caused the portions of a Servicing Officer its records relating to the Mortgage Loans to be clearly and unambiguously marked to indicate that the Trust Balances of such Mortgage Loans (to the extent provided herein) have been assigned and transferred to the Trustee and constitute part of the nature set forth Trust Fund in Section 3.09accordance with the terms of the trust created hereunder.
(d) The Company shall not be required Servicer's right to record the assignments maintain possession of the Mortgages referred to documents enumerated above shall continue so long as the long term unsecured debt of the Indirect Parent is assigned ratings of at least A- by Standard and Poor's and A3 by Xxxxx'x. At such time as the long term unsecured debt of the Indirect Parent does not satisfy the above referenced criteria, as promptly as practicable but in Section 2.01(b)(1)(iiino event more than 90 days following the happening of such event (or 120 days upon the receipt by the Trustee from the Servicer of a letter from each Rating Agency that such longer period (without taking into account the Certificate Insurance Policy) will not result in a reduction in or file withdrawal of any rating of the UCC-3 Investor Certificates), the Servicer shall at the expense of the Servicer (i) prepare assignments referred to in Section 2.01(b)(2)(ix) recordable form to the Trustee unless of each Mortgage Loan (which may be a blanket assignment) and (ii) deliver the Company or related Mortgage Files to the Trustee obtains actual notice or knowledge to be held by the Trustee in trust, upon the terms herein set forth, for the use and benefit of all present and future Certificateholders and the occurrence of Trustee shall retain possession thereof except to the extent the Servicer requires any Trigger EventMortgage Files for normal servicing as contemplated by Section 3.07; provided, however, that such recording or filing preparation of assignments and delivery of related Mortgage Files shall not be required if in the Company delivers case of any Common Mortgage Loan for which the Servicer has so prepared an assignment and delivered the related Mortgage File to the Trustee a letter from each Rating Agency to related Prior Trustee. In the effect that event the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required Servicer fails to deliver the Document Mortgage Files to the Trustee within such 90 day period or, if applicable, 120 day period, the Trustee shall give written notice pursuant to the Support Agreement to the Indirect Parent of the Servicer's failure to deliver the Mortgage Files. Within 60 days following delivery of the occurrence Mortgage Files to the Trustee, it will review or cause to be reviewed each Mortgage File to ascertain that all required documents set forth in this Section 2.01 have been executed and received, and that such documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule and in so doing the Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such 60 day period the Trustee finds any document constituting a part of a Trigger Event)Mortgage File not to have been executed or received or to be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, the Company Trustee shall be deemed promptly notify the Servicer, which shall have a period of 30 days after such notice within which to have knowledge correct or cure any such defect. Upon the completion of the review by the Trustee of each Mortgage File within such 60 day period and, if necessary, the correction or cure of any defect by the Servicer within such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence30 day period, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of Servicer will submit such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, Mortgage Loans for recording in the appropriate public office offices for real property records within seven (7) days of the completion of such review and necessary correction and instruct the recording offices to return the original recorded assignments to the Trustee. Within 30 days following receipt by the Trustee of the recorded assignment the Trustee shall review or UCC financing statements, except that the Company need not cause to be so completed and recorded reviewed such assignment to confirm the information specified above with respect to the other documents. The Trustee shall notify the Servicer of any defect in such assignment based on such review. The Servicer shall have a period of 30 days following such notice to correct or cure such defect. If the Servicer fails to record an assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided aboveherein provided, the Trustee shall record prepare and file or cause to be recorded or filed such assignment or UCC-3 financing statement prepared and filed, at the expense of the CompanyServicer, such assignments in the appropriate real property or other records and the Servicer hereby appoints the Trustee as its attorney-in-fact with full power and authority acting in its stead for the purpose of such preparation and filing.
(e) On the Closing Date the Transferor shall deliver the Certificate Insurance Policy to the Trustee.
(f) Bankers Trust Company of California, N.A., as the Prior Trust Trustee or successor trustee for each of the Prior Trusts, hereby acknowledges that the Mortgage Loan Seller has previously reserved and retained certain rights, interests, power and authority (the "Retained Rights") with respect to the Common Mortgage Loan Interests to the extent of the Mortgage Loan Seller's interest in the Common Mortgage Loan Interests not sold to the Prior Trusts, all as set forth more fully in the Prior Trust Pooling and Servicing Agreements. In connection with any such recording or filing, Without limiting the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding generality of the foregoing, at any time the Company may record or file, or cause to be recorded or filed, Retained Rights include the assignments of Mortgages or UCC-3 financing statement at the expense right of the CompanyMortgage Loan Seller to certain balances arising under the related Common Mortgage Loans, together with payments of principal and interest, from whatever source derived, allocable to such balances, as provided in the Prior Trust Pooling and Servicing Agreements. The Mortgage Loan Seller hereby notifies the Prior Trust Trustees that certain of the Retained Rights are being assigned to the Trustee pursuant to, and to the extent provided in, this Agreement (the "Assignment of Retained Rights").
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
Conveyance of Mortgage Loans. (a) The Company, concurrently with the execution and delivery of this Agreement, does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) all the right, title and interest of the Company in and to the Mortgage Loans, including all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, title and interest in and to the Mortgage Loans to the Trustee to the extent provided above and that retention of record title of Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative 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, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with recording of the Mortgage, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby deliver to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the Company, the related recorded intervening assignment or assignments of Mortgage, showing a complete chain of assignment from the originator to the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than with respect to a Cooperative Loan). The Company shall also retain in its files the Primary Insurance Policy evidencing any primary mortgage insurance relating to the Mortgage Loans during the period when the related insurance is in force. (The copies of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ge Capital Mort Serv Inc Remic Mort Pa Thro Cert Ser 2000-11)
Conveyance of Mortgage Loans. (a) Each Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of such Seller in and to the applicable Initial Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of the Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the applicable Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The CompanyMaster Servicer confirms that, on behalf of the Sellers, concurrently with the transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders, without recourse, all right title and interest in the Initial Mortgage Loans. CHL further agrees (x) to cause The Bank of New York xx xxxxx xxxx xxx Swap Contract Administration Agreement as Swap Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate corridor transaction evidenced by the Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Swap Contract Administrator, on the terms and conditions set forth in the Swap Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, each Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of such Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of any related Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date. Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) Each Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in and to the Mortgage LoansCertificateholders, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and to the Mortgage Loans portion of the Trust Fund not otherwise conveyed to the Trustee to the extent provided above and that retention of record title of Mortgages (subject pursuant to Section 2.01(d2.01(a) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanb).
(bd) In connection with such transfer and assignment, On any Business Day during the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank Funding Period designated by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage CHL to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from Sellers, the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease Depositor and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateTrustee shall complete, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security execute and deliver a Subsequent Transfer Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with After the execution and delivery of this such Subsequent Transfer Agreement, due to a delay in connection with recording of on the MortgageSubsequent Transfer Date, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required set aside in the Pre-Funding Account an amount equal to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian)Subsequent Transfer Date Purchase Amount.
(3e) With respect to each Designated Loan, The transfer of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with satisfaction of each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) of the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loansconditions:
(1) the Mortgage with evidence Trustee and the Underwriters will be provided Opinions of recording indicated thereon (other than Counsel addressed to the Rating Agencies as with respect to a Cooperative Loanthe sale of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies with respect to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered as provided in Section 2.01(f);
(2) a copy the execution and delivery of such Subsequent Transfer Agreement or conveyance of the title insurance policy (other than with respect related Subsequent Mortgage Loans does not result in a reduction or withdrawal of any ratings assigned to a Cooperative Loan)the Certificates by the Rating Agencies;
(3) with respect to any Mortgage that has been assigned the Depositor shall deliver to the CompanyTrustee an Officer's Certificate confirming the satisfaction of each of the conditions set forth in this Section 2.01(e) required to be satisfied by such Subsequent Transfer Date;
(4) each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to it under this Agreement, the related recorded intervening assignment or assignments of Mortgageprovided, showing a complete chain of assignment from the originator to the Company (other than however, that with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing breach of a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) representation and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than warranty with respect to a Cooperative LoanSubsequent Mortgage Loan set forth in this clause (4). The Company , the obligation under Section 2.03(e) of this Agreement of the applicable Seller, to cure, repurchase or replace such Subsequent Mortgage Loan shall also retain constitute the sole remedy against such Seller respecting such breach available to Certificateholders, the Depositor or the Trustee;
(5) the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were selected in its files a manner reasonably believed not to be adverse to the Primary Insurance Policy evidencing any primary interests of the Certificateholders;
(6) no Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was 30 or more days delinquent;
(7) following the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer Date, the characteristics of each Loan Group will not vary by more than the amount specified below (other than the percentage of Mortgage Loans secured by Mortgaged Properties located in the State of California, which will not exceed 50% of the Mortgage Pool and the percentage of mortgage insurance relating to loans in the Credit Grade Categories of "C" or below, which will not exceed 10% of the Mortgage Loans during in each Loan Group) from the period when characteristics listed below; provided that for the related insurance is in force. (The copies purpose of making such calculations, the characteristics for any Initial Mortgage Loan made will be taken as of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Initial Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer characteristics for any Subsequent Mortgage Loans will be taken as of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger EventSubsequent Cut-off Date; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Group 1
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Cwabs Asset-Backed Certificates Trust 2005-Ab5)
Conveyance of Mortgage Loans. (a) Each Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of such Seller in and to the applicable Initial Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of the Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the applicable Initial Mortgage Loans on or prior to the Initial Cut-off Date and interest accruing prior to the Initial Cut-off Date. The CompanyMaster Servicer confirms that, on behalf of the Sellers, concurrently with the transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. Immediately upon the conveyance of the Initial Mortgage Loans referred to in the preceding paragraph, the Depositor (i) sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Initial Mortgage Loans and (ii) causes the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee. CHL further agrees (x) to cause The Bank of New York to enter into the Corridor Contract Administration Agreement as Corridor Contract Administrator and (y) to assign all of its right, title and interest in and to the interest rate corridor transaction evidenced by each Confirmation, and to cause all of its obligations in respect of such transaction to be assumed by, the Corridor Contract Administrator, on the terms and conditions set forth in the Corridor Contract Assignment Agreement.
(b) Subject to the execution and delivery of the related Subsequent Transfer Agreement as provided by Section 2.01(d) and the terms and conditions of this Agreement, each Seller sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, on each Subsequent Transfer Date, all the right, title and interest of such Seller in and to the related Subsequent Mortgage Loans, including all interest and principal received and receivable by such Seller on or with respect to such Subsequent Mortgage Loans after the related Subsequent Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Master Servicer on behalf of such Seller as part of any related Subsequent Certificate Account Deposit as provided in this Agreement, other than principal due on such Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date and interest accruing prior to the related Subsequent Cut-off Date. Immediately upon the conveyance of the Subsequent Mortgage Loans referred to in the preceding paragraph, the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for benefit of the Certificateholders and the Certificate Insurer, without recourse, all right title and interest in the Subsequent Mortgage Loans.
(c) Each Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, does hereby transfersells, assigntransfers, set-over assigns and otherwise convey conveys to the Trustee without recourse (except as provided herein) all for the right, title use and interest benefit of the Company in and to the Mortgage LoansCertificateholders, including without recourse, all interest and principal received by the Company 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, and all Principal Prepayments received on or before, the Cut-off Date). The Company acknowledges it has sold all right, right title and interest in and to the Mortgage Loans portion of the Trust Fund not otherwise conveyed to the Trustee to the extent provided above and that retention of record title of Mortgages (subject pursuant to Section 2.01(d2.01(a) of this Agreement) is for convenience only and that the Company holds record title solely as custodian for the Trustee for benefit of the Certificateholders. The Company agrees that it will take no action inconsistent with ownership of the Mortgage Loans by the Trustee and will not deliver any instrument of satisfaction or conveyance with respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan, except in accordance with the terms and the intent of this Agreement. With respect to any Pledged Asset Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security interest in and to any Additional Collateral, (iii) its right to receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in respect of any Pledged Asset Mortgage Loan. In addition, with respect to any CashSaver Mortgage Loan, the Company does hereby transfer, assign, set-over and otherwise convey to the Trustee without recourse (except as provided herein) (i) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in and to any Additional Collateral and (iii) its right to receive payments in respect of any CashSaver Mortgage Loanb).
(bd) In connection with such transfer and assignment, On any Business Day during the Company does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank Funding Period designated by the Company, including all intervening endorsements showing a complete chain of endorsement from the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name of MERS or its designee, an assignment in recordable form (which may be included in a blanket assignment or assignments) of the Mortgage CHL to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in blank by the Company and showing an unbroken chain of endorsements from Sellers, the originator to the Company; provided, however, that if such Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory Mortgage Note may be payable directly to the Company or may show a complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease Depositor and the Assignment of Proprietary Lease executed in blank or to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock CertificateTrustee shall complete, together with an undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the Cooperative of the interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security execute and deliver a Subsequent Transfer Agreement;
(vi) Copies of the original UCC-1 financing statement, 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 in the Cooperative Stock and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the security interest described in clause (vi) above, sent to the appropriate public office for filing, showing an unbroken chain of title from the originator to the Company, evidencing the security interest of the originator in the Cooperative Stock and the Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment for all Cooperative Loans) of the interest of the Company in the Security Agreement, Assignment of Proprietary Lease and the recognition agreement described in clause (iv) above, showing an unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the security interest described in clause (vi) above, in form suitable for filing, otherwise complete except for filing information regarding the original UCC-1 if unavailable (which may be included in a blanket assignment to the Trustee). Except for any Mortgage which has been recorded in the name of MERS or its designee, in instances where a completed assignment of the Mortgage in recordable form cannot be delivered by the Company to the Trustee (or the Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently with After the execution and delivery of this such Subsequent Transfer Agreement, due to a delay in connection with recording of on the MortgageSubsequent Transfer Date, the Company may, in lieu of delivering the completed assignment in recordable form, deliver to the Trustee (or the Custodian) the assignment in such form, otherwise complete except for recording information. With respect to any Mortgage that has been recorded in the name of MERS or its designee, no assignment of the Mortgage in favor of the Trustee shall be required set aside in the Pre-Funding Account an amount equal to be prepared or delivered; instead, the Company shall take all actions as are necessary to cause the Trust Fund to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS, and shall provide evidence thereof to the Trustee (or the Custodian)Subsequent Transfer Date Purchase Amount.
(3e) With respect to each Designated Loan, The transfer of Subsequent Mortgage Loans on the Company does hereby deliver Subsequent Transfer Date is subject to the Trustee (or the Custodian) the Designated Loan Closing Documents.
(c) In connection with satisfaction of each Mortgage Loan transferred and assigned to the Trustee, the Company shall deliver to the Trustee (or the Custodian) of the following documents or instruments as promptly as practicable, but in any event within 30 days, after receipt by the Company of all such documents and instruments for all of the outstanding Mortgage Loansconditions:
(1) the Mortgage with evidence Trustee, the Underwriters and the Certificate Insurer will be provided Opinions of recording indicated thereon (other than Counsel addressed to the Rating Agencies as with respect to a Cooperative Loanthe sale of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date (such opinions being substantially similar to the opinions delivered on the Closing Date to the Rating Agencies and the Certificate Insurer with respect to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered as provided in Section 2.01(f);
(2) a copy the execution and delivery of such Subsequent Transfer Agreement or conveyance of the title insurance policy related Subsequent Mortgage Loans does not result in a reduction or withdrawal of any ratings assigned to the Certificates by the Rating Agencies (other than with respect without regard to a Cooperative Loanthe Certificate Insurance Policy, in the case of the Class A Certificates);
(3) with respect to any Mortgage that has been assigned the Depositor shall deliver to the CompanyTrustee an Officer's Certificate confirming the satisfaction of each of the conditions set forth in this Section 2.01(e) required to be satisfied by such Subsequent Transfer Date;
(4) each Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies the representations and warranties applicable to it under this Agreement, the related recorded intervening assignment or assignments of Mortgageprovided, showing a complete chain of assignment from the originator to the Company (other than however, that with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the Company, the related filed intervening UCC-3 financing statements (not previously delivered pursuant to Section 2.01(b)(2)(vii)), showing breach of a complete chain of assignment from the named originator to the Company. Pending such delivery, the Company shall retain in its files (a) copies of the documents described in clauses (1) representation and (3) of the preceding sentence, without evidence of recording thereon, and (b) title insurance binders with respect to the Mortgage Loans (other than warranty with respect to a Cooperative LoanSubsequent Mortgage Loan set forth in this clause (4). The Company , the obligation under Section 2.03(e) of this Agreement of the applicable Seller, to cure, repurchase or replace such Subsequent Mortgage Loan shall also retain constitute the sole remedy against such Seller respecting such breach available to Certificateholders, the Depositor, the Certificate Insurer or the Trustee;
(5) the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were selected in its files a manner reasonably believed not to be adverse to the Primary Insurance Policy evidencing any primary mortgage insurance relating to interests of the Certificateholders or the Certificate Insurer;
(6) no Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was 30 or more days delinquent;
(7) following the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer Date, the characteristics of the Mortgage Loans during will not vary by more than the period when amount specified below from the related insurance is in force. (The copies characteristics listed below; provided that for the purpose of making such calculations, the characteristics for any Initial Mortgage Loan made will be taken as of the Mortgage, intervening assignments of Mortgage, if any, title insurance binder and the Primary Insurance Policy, if any, described in the two preceding sentences are collectively referred to herein as the "Document File" with respect to each Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery to the Trustee (and the Custodian) shall not have occurred on or before the first anniversary of the Closing Date. The Company shall promptly furnish to the Trustee (or the Custodian) the documents included in the Document Files (other than any such documents previously delivered to the Trustee (or the Custodian) as originals or copies) either (a) upon the written request of the Trustee or (b) when the Company or the Trustee obtains actual notice or knowledge of a Trigger Event. The Trustee shall have no obligation to request delivery of the Document Files unless a Responsible Officer of the Trustee has actual notice or knowledge of the occurrence of a Trigger Event. In the case of Mortgage Loans which have been prepaid in full after the Initial Cut-off Date and prior to the date of execution and delivery of this Agreement, the Company, in lieu of delivering the above documents to the Trustee, herewith delivers to the Trustee a certification of a Servicing Officer characteristics for any Subsequent Mortgage Loans will be taken as of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the Trustee obtains actual notice or knowledge of the occurrence of any Trigger Event; provided, however, that such recording or filing shall not be required if the Company delivers to the Trustee a letter from each Rating Agency to the effect that the failure to take such action will not cause such Rating Agency to reduce or withdraw its then current ratings of the Certificates. The party obtaining actual notice or knowledge of any of such events shall give the other party (and the Custodian, if applicable) prompt written notice thereof. For purposes of the foregoing (as well as for purposes of determining whether the Company shall be required to deliver the Document Files to the Trustee following the occurrence of a Trigger Event), the Company shall be deemed to have knowledge of any such downgrading referred to in the definition of Trigger Event if, in the exercise of reasonable diligence, the Company has or should have had knowledge thereof. As promptly as practicable subsequent to the Company's delivery or receipt of such written notice, as the case may be, the Company shall insert the recording or filing information in the assignments of the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be recorded or filed, at the Company's expense, in the appropriate public office for real property records or UCC financing statements, except that the Company need not cause to be so completed and recorded any assignment of mortgage which relates to a Mortgage Loan secured by property in a jurisdiction under the laws of which, on the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and satisfactory to each Rating Agency (as evidenced in writing), recordation of such assignment is not necessary to protect the Trustee against discharge of such Mortgage Loan by the Company or any valid assertion that any Person other than the Trustee has title to or any rights in such Mortgage Loan. In the event that the Company fails or refuses to record or file the assignment of Mortgages or UCC-3 financing statement in the circumstances provided above, the Trustee shall record or cause to be recorded or filed such assignment or UCC-3 financing statement at the expense of the Company. In connection with any such recording or filing, the Company shall furnish such documents as may be reasonably necessary to accomplish such recording or filing. Notwithstanding the foregoing, at any time the Company may record or file, or cause to be recorded or filed, the assignments of Mortgages or UCC-3 financing statement at the expense of the Company.Subsequent Cut-off Date;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CWHEQ Home Equity Loan Trust, Series 2006-S1)
