Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys without recourse, to the Issuer, all of its right, title and interest in and to the Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans on or before the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer is absolute and is intended by all parties hereto to be treated as a sale by the Depositor. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee to be held on behalf of the Owners of the Notes. In the event that such conveyance is deemed to be a loan, the parties intend that the Depositor shall be deemed to have granted to the Issuer a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor under the Loan Sale Agreement, the Seller has filed, in the appropriate office or offices in the States of Delaware and Florida, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Trust Estate. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Trust Estate. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Delaware and Florida a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's, the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes. (b) In connection with the transfer and assignment of the Initial Home Equity Loans, or on each Subsequent Transfer Date with respect to the Subsequent Home Equity Loan, the Seller and the Depositor agree to:
Appears in 1 contract
Samples: Sale and Servicing Agreement (Imc Home Equity Loan Owner Trust 1997-8)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the Home Equity Loans principal (other than payments of principal and interest due on the Home Equity Loans including Prepayments) collected on or before prior to the Cut-Off Date)Date and all interest accrued on or prior to February 28, 1999. The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's, the Certificate Insurer's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York, Nevada and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the IssuerTrustee's, the Certificate Insurer's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, or the Depositor agrees to:
(i) deliver without recourse to the Trustee on each Subsequent Transfer Date the Startup Day with respect to the Subsequent each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the Seller original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and the Depositor agree to:modification agreements, if any and
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contisecurities Asset Funding Corp)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the Home Equity Loans principal (other than payments of principal and interest due on the Home Equity Loans including Prepayments) collected on or before prior to the Cut-Off Date)Date and all interest accrued on or prior to February 28, 1999. The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's, the Certificate Insurer's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York, Nevada and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the IssuerTrustee's, the Certificate Insurer's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost;
(ii) cause, within 60 days following the Startup Day or 15 days following the receipt from the relevant state authorities, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1999-1 under the Pooling and Servicing Agreement dated as of March 1, 1999" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee and the Certificate Insurer, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity Loans (in form and substance and from counsel satisfactory to the Rating Agencies and the Certificate Insurer); notwithstanding the furnishing of such opinion of counsel, however, the Certificate Insurer may, in its reasonable discretion after consultation with the Depositor prior to the date on which all assignments of Mortgages are required to be filed hereunder, require the filing of assignments of Mortgages in any state that is the subject of such opinions; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding the delivery of opinions specified in clause (i) above the Trustee shall cause to be recorded each assignment of a Mortgage upon the earliest to occur of (a) the reasonable direction of the Certificate Insurer, (b) the removal of the Servicer pursuant to Section 8.20 hereof or (c) notification to the Trustee of the occurrence of a bankruptcy or insolvency relating to the Mortgagor. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer of such Seller's failure to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 with respect to one or more Home Equity Loans shall be accomplished at the expense of the Seller delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee for the benefit of the Owners of the Certificates and of the Certificate Insurer all right, title and interest of such Seller in and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that such Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the order of the Seller delivering such Home Equity Loan, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee for the benefit of the Owners of the Certificates and the Certificate Insurer, each Seller agrees to (i) deliver without recourse to the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by such Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller delivering such Qualified Replacement Mortgage (i) the original Note relating thereto, endorsed without recourse or representation, to such Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Depositor agree to:File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller that delivered the corresponding Home Equity Loan shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contimortgage Home Equity Trust 1999-1)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Date, the Seller, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys without recourse, to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys without recourse, to the Issuer, all of its respective right, title and interest in and to the Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans on or before the Cut-Off Date). The transfer by the Seller to the Depositor and by the Depositor to the Issuer of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer is absolute and is intended by all parties hereto to be treated as a sale by the DepositorSeller to the Depositor and by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee to be held on behalf of the Owners of the Notes. In the event that such conveyance is deemed to be a loan, the parties intend that the Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor under the Loan Sale AgreementDepositor, the Seller has filed, in the appropriate office or offices in the States of Delaware and Florida, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans Loans, and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Trust Estate. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Trust Estate. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Delaware and Florida a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party and listing the Home Equity Loans Loans, and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's, the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, or the Seller agrees to:
(i) deliver without recourse to the Custodian, on each Subsequent Transfer behalf of the Indenture Trustee, on the Closing Date with respect to the Subsequent each Home Equity Loan, (A) the original Mortgage Notes (or in the case of not more than 0.50% of the Home Equity Loans, a lost note affidavit executed by an Authorized Officer of the Seller) endorsed in blank or to the order of "The Chase Manhattan Bank, as Indenture Trustee for the IMC Home Equity Loan Asset Backed Notes, Series 1998-6 without recourse," (B) (I) the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy or (II) the attorney's opinion of title, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or the Seller, showing a complete chain of title from origination to the Issuer, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller from the applicable recording office) or a copy of the Mortgage certified as a true copy by the closing agent or the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost or retained by the recording office;
(ii) cause, within 60 days following the Closing Date, assignments of the Mortgages to "The Chase Manhattan Bank, as Indenture Trustee for the "The Chase Manhattan Bank, as the Indenture Trustee for the IMC Home Equity Loan Asset Backed Notes, Series 1998-6 without recourse," to be submitted for recording in the appropriate jurisdictions; provided, however, that the Seller shall not be required to prepare an assignment for any Mortgage described in subsection (b)(i)(E)(2) above with respect to which the original recording information has not yet been received from the recording office until such information is received; provided, further, that the Seller shall not be required to record an assignment of a Mortgage if the Seller furnishes to the Indenture Trustee and the Note Insurer, on or before the Closing Date, at the Seller's expense, an opinion of counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Indenture Trustee's interest in the related Home Equity Loans (in form and substance satisfactory to the Indenture Trustee, and the Note Insurer and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded upon the earliest to occur of: (i) reasonable direction by the Note Insurer or (ii) the occurrence of a Servicer Termination Event; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Indenture Trustee, within 15 days of receipt thereof by the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller, within one year after the Closing Date. Notwithstanding anything to the contrary contained in this Section 2.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Seller and the Depositor agree to:shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Indenture Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of this subsection (b), the Seller shall deliver to the Custodian, on behalf of the Indenture Trustee a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by the Seller, which list shall state the reason why the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Indenture Trustee shall make an immediate demand on the Seller to prepare such Mortgage assignments, and shall inform the Note Insurer, in writing, of the Seller's failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Indenture Trustee shall cooperate in executing any documents prepared by the Note Insurer and submitted to the Custodian, on behalf of the Indenture Trustee in connection with this provision. Following the expiration of each 60-day period referred to in clause (ii) of this subsection (b), the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Indenture Trustee. The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Closing Date and has not provided to the Custodian, on behalf of the Indenture Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Indenture Trustee, the Custodian, on behalf of the Indenture Trustee shall notify the Seller of the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Closing Date. A copy of such notice shall be sent by the Custodian, on behalf of the Indenture Trustee to the Note Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 2.04(b) hereof; provided, however, that if as of the end of such 20th calendar month the Seller demonstrates to the satisfaction of the Note Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Indenture Trustee, the Seller continues to demonstrate to the satisfaction of the Note Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian, on behalf of the Indenture Trustee shall be retained in the related File. All recording required pursuant to this Section 2.05 shall be accomplished at the expense of the Seller.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Closing Date, the Seller, in lieu of the foregoing, will deliver within six (6) days after the Closing Date to the Indenture Trustee a certification of an Authorized Officer in the form set forth in Exhibit A.
(d) The Seller shall transfer, assign, set over and otherwise convey without recourse, to the Depositor and the Depositor shall transfer, assign, set over and otherwise convey without recourse, to the Issuer all right, title and interest of the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Indenture Trustee on behalf of the Issuer by the Seller pursuant to Section 2.03, 2.04 or 2.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the lien of the Indenture in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the Seller's order, all of its and the Issuer's right, title and interest in and to such released Home Equity Loan and all the Issuer's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Issuer shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Issuer, the Seller agrees to (i) deliver without recourse to the Custodian, on behalf of the Indenture Trustee on the date of delivery of such Qualified Replacement Mortgage the original Mortgage Note relating thereto, endorsed in blank or to the order of "The Chase Manhattan Bank, as Indenture Trustee for IMC Home Equity
Appears in 1 contract
Samples: Sale and Servicing Agreement (Imc Home Equity Loan Owner Trust 1998-6)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's, the Certificate Insurer's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York, Nevada and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the IssuerTrustee's, the Certificate Insurer's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost;
(ii) cause, within 60 days following the Startup Day or 15 days following the receipt from the relevant state authorities, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1998-4 under the Pooling and Servicing Agreement dated as of December 1, 1998" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee and the Certificate Insurer, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity Loans (in form and substance and from counsel satisfactory to the Rating Agencies and the Certificate Insurer); notwithstanding the furnishing of such opinion of counsel, however, the Certificate Insurer may, in its reasonable discretion after consultation with the Depositor prior to the date on which all assignments of Mortgages are required to be filed hereunder, require the filing of assignments of Mortgages in any state that is the subject of such opinions; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding the delivery of opinions specified in clause (i) above the Trustee shall cause to be recorded each assignment of a Mortgage upon the earliest to occur of (a) the reasonable direction of the Certificate Insurer, (b) the removal of the Servicer pursuant to Section 8.20 hereof or (c) notification to the Trustee of the occurrence of a bankruptcy or insolvency relating to the Mortgagor. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer of such Seller's failure to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 with respect to one or more Home Equity Loans shall be accomplished at the expense of the Seller delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of such Seller in and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that such Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the order of the Seller delivering such Home Equity Loan, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, each Seller agrees to (i) deliver without recourse to the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by such Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller delivering such Qualified Replacement Mortgage (i) the original Note relating thereto, endorsed without recourse or representation, to such Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Depositor agree to:File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller that delivered the corresponding Home Equity Loan shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contisecurities Asset Funding Corp)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's, Trustee's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost,
(ii) cause, within 60 days following the Startup Day, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1997-2 under the Pooling and Servicing Agreement dated as of March 1, 1997" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity Loans (in form and substance and from counsel satisfactory to the Rating Agencies); and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Rating Agencies. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Trustee that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Trustee that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 with respect to one or more Home Equity Loans shall be accomplished at the expense of the Seller delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of such Seller in and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that such Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the order of the Seller delivering such Home Equity Loan, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, each Seller agrees to (i) deliver without recourse to the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by such Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller delivering such Qualified Replacement Mortgage (i) the original Note relating thereto, endorsed without recourse or representation, to such Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Depositor agree to:File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller that delivered the corresponding Home Equity Loan shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contimortgage Home Equity Loan Trust 1997-2)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Date, the Seller, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys without recourse, to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys without recourse, to the Issuer, all of its respective right, title and interest in and to the Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans on or before the Cut-Off Date). The transfer by the Seller to the Depositor and by the Depositor to the Issuer of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer is absolute and is intended by all parties hereto to be treated as a sale by the DepositorSeller to the Depositor and by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee to be held on behalf of the Owners of the Notes. In the event that such conveyance is deemed to be a loan, the parties intend that the Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor under the Loan Sale AgreementDepositor, the Seller has filed, in the appropriate office or offices in the States of Delaware and Florida, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans Loans, and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Trust Estate. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Trust Estate. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Delaware and Florida a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party and listing the Home Equity Loans Loans, and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's, the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, or the Seller agrees to:
(i) deliver without recourse to the Custodian, on each Subsequent Transfer behalf of the Indenture Trustee, on the Closing Date with respect to the Subsequent each Home Equity Loan, (A) the original Mortgage Note endorsed in blank or to the order of "The Chase Manhattan Bank, as Indenture Trustee for the IMC Home Equity Loan Asset Backed Notes, Series 1998-7A and Series 1998-7B without recourse," (B) (I) the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy or (II) the attorney's opinion of title, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or the Seller, showing a complete chain of title from origination to the Issuer, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller from the applicable recording office) or a copy of the Mortgage certified as a true copy by the closing agent or the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost or retained by the recording office;
(ii) cause, within 30 days following the Closing Date, assignments of the Mortgages to The Chase Manhattan Bank, as Indenture Trustee for the "The Chase Manhattan Bank, as the Indenture Trustee for the IMC Home Equity Loan Asset Backed Notes, Series 1998-7A and Series 1998-7B without recourse," to be submitted for recording in the appropriate jurisdictions; provided, however, that the Seller shall not be required to prepare an assignment for any Mortgage described in subsection (b)(i)(E)(2) above with respect to which the original recording information has not yet been received from the recording office until such information is received; provided, further, that the Seller shall not be required to record an assignment of a Mortgage if the Seller furnishes to the Indenture Trustee and the Note Insurer, on or before the Closing Date, at the Seller's expense, an opinion of counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Indenture Trustee's interest in the related Home Equity Loans (in form and substance satisfactory to the Indenture Trustee, and the Note Insurer and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, (A) each assignment of Mortgage shall be recorded upon the earliest to occur of: (i) reasonable direction by the Note Insurer or (ii) the occurrence of a Servicer Termination Event and (B) the assignment of Mortgage relating to a specified Home Equity Loan shall be recorded upon instruction by the Servicer that such recordation is required by the Servicer as part of its loan resolution process with respect to such Home Equity Loan; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Indenture Trustee, within 15 days of receipt thereof by the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller, within one year after the Closing Date. Notwithstanding anything to the contrary contained in this Section 2.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Seller and the Depositor agree to:shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Indenture Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 30-day period referred in clause (ii) of this subsection (b), the Seller shall deliver to the Custodian, on behalf of the Indenture Trustee a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by the Seller, which list shall state the reason why the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Indenture Trustee shall make an immediate demand on the Seller to prepare such Mortgage assignments, and shall inform the Note Insurer, in writing, of the Seller's failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Indenture Trustee shall cooperate in executing any documents prepared by the Note Insurer and submitted to the Custodian, on behalf of the Indenture Trustee in connection with this provision. Following the expiration of each 30-day period referred to in clause (ii) of this subsection (b), the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Indenture Trustee. The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Closing Date and has not provided to the Custodian, on behalf of the Indenture Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Indenture Trustee, the Custodian, on behalf of the Indenture Trustee shall notify the Seller of the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Closing Date. A copy of such notice shall be sent by the Custodian, on behalf of the Indenture Trustee to the Note Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 2.04(b) hereof; provided, however, that if as of the end of such 20th calendar month the Seller demonstrates to the satisfaction of the Note Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Indenture Trustee, the Seller continues to demonstrate to the satisfaction of the Note Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian, on behalf of the Indenture Trustee shall be retained in the related File. All recording required pursuant to this Section 2.05 shall be accomplished at the expense of the Seller.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Closing Date, the Seller, in lieu of the foregoing, will deliver within six (6) days after the Closing Date to the Indenture Trustee a certification of an Authorized Officer in the form set forth in Exhibit A.
(d) The Seller shall transfer, assign, set over and otherwise convey without recourse, to the Depositor and the Depositor shall transfer, assign, set over and otherwise convey without recourse, to the Issuer all right, title and interest of the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Indenture Trustee on behalf of the Issuer by the Seller pursuant to Section 2.03, 2.04 or 2.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the lien of the Indenture in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the Seller's order, all of its and the Issuer's right, title and interest in and to such released Home Equity Loan and all the Issuer's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Issuer shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Issuer, the Seller agrees to (i) deliver without recourse to the Custodian, on behalf of the Indenture Trustee on the date of delivery of such Qualified Replacement Mortgage the original Mortgage Note relating thereto, endorsed in blank or to the order of "The Chase Manhattan Bank, as Indenture Trustee for IMC Home Equity Loan Asset Backed Notes, Series 1998-7A and Series 1998-7B without recourse,"
Appears in 1 contract
Samples: Sale and Servicing Agreement (Imc Home Equity Loan Owner Trust 1998-7)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's, the Certificate Insurer's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York, Nevada and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the IssuerTrustee's, the Certificate Insurer's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost;
(ii) cause, within 60 days following the Startup Day or 15 days following the receipt from the relevant state authorities, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1998-1 under the Pooling and Servicing Agreement dated as of March 1, 1998" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee and the Certificate Insurer, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity Loans (in form and substance and from counsel satisfactory to the Rating Agencies and the Certificate Insurer); notwithstanding the furnishing of such opinion of counsel, however, the Certificate Insurer may, in its reasonable discretion after consultation with the Depositor prior to the date on which all assignments of Mortgages are required to be filed hereunder, require the filing of assignments of Mortgages in any state that is the subject of such opinions; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding the delivery of opinions specified in clause (i) above the Trustee shall cause to be recorded each assignment of a Mortgage upon the earliest to occur of (a) the reasonable direction of the Certificate Insurer, (b) the removal of the Servicer pursuant to Section 8.20 hereof or (c) notification to the Trustee of the occurrence of a bankruptcy or insolvency relating to the Mortgagor. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer of such Seller's failure to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 with respect to one or more Home Equity Loans shall be accomplished at the expense of the Seller delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of such Seller in and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that such Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the order of the Seller delivering such Home Equity Loan, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, each Seller agrees to (i) deliver without recourse to the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by such Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller delivering such Qualified Replacement Mortgage (i) the original Note relating thereto, endorsed without recourse or representation, to such Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Depositor agree to:File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller that delivered the corresponding Home Equity Loan shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contimortgage Home Equity Trust 1998-1)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate and the Corpus; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust EstateEstate and the Corpus, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust EstateEstate and the Corpus. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's, the Owners' and the Certificate Insurer's interest in the Trust EstateEstate and the Corpus . In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust EstateEstate and the Corpus. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the IssuerTrustee's, the Owners' and the Note Certificate Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the NotesCorpus.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost,
(ii) cause, within 60 days following the Startup Day, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1996-4 under the Pooling and Servicing Agreement dated as of December 1, 1996" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee and the Certificate Insurer, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity Loans (in form and substance and from counsel satisfactory to the Certificate Insurer and to the Rating Agencies); notwithstanding the furnishing of such opinion of counsel, however, the Certificate Insurer may, in its reasonable discretion after consultation with the Depositor prior to the date on which all assignments of Mortgages are required to be filed hereunder, require the filing of assignments of Mortgages in any state that is the subject of such opinions; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer of such Seller's failure to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 with respect to one or more Home Equity Loans shall be accomplished at the expense of the Seller delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of such Seller in and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that such Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the order of the Seller delivering such Home Equity Loan, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, each Seller agrees to (i) deliver without recourse to the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by such Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller delivering such Qualified Replacement Mortgage (i) the original Note relating thereto, endorsed without recourse or representation, to such Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Depositor agree to:File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller that delivered the corresponding Home Equity Loan shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contimortgage Home Equity Loan Trust 1996-4)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's, the Certificate Insurer's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the IssuerTrustee's, the Certificate Insurer's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost;
(ii) cause, within 15 days following the receipt from the relevant state authorities, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1997-5 under the Pooling and Servicing Agreement dated as of December 1, 1997" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee and the Certificate Insurer, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity Loans (in form and substance and from counsel satisfactory to the Rating Agencies and the Certificate Insurer); notwithstanding the furnishing of such opinion of counsel, however, the Certificate Insurer may, in its reasonable discretion after consultation with the Depositor prior to the date on which all assignments of Mortgages are required to be filed hereunder, require the filing of assignments of Mortgages in any state that is the subject of such opinions; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding the delivery of opinions specified in clause (iii) above the Trustee shall cause to be recorded each assignment of a Mortgage upon the earliest to occur of (a) the reasonable direction of the Certificate Insurer, (b) the removal of the Servicer pursuant to Section 8.20 hereof or (c) notification to the Trustee of the occurrence of a bankruptcy or insolvency relating to the Mortgagor. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer of such Seller's failure to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 with respect to one or more Home Equity Loans shall be accomplished at the expense of the Seller delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of such Seller in and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that such Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the order of the Seller delivering such Home Equity Loan, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, each Seller agrees to (i) deliver without recourse to the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by such Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller delivering such Qualified Replacement Mortgage (i) the original Note relating thereto, endorsed without recourse or representation, to such Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Depositor agree to:File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller that delivered the corresponding Home Equity Loan shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contimortgage Home Equity Trust 1997-5)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys without recourse, to the Issuer, all of its right, title and interest in and to the Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans on or before the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer is absolute and is intended by all parties hereto to be treated as a sale by the Depositor. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee to be held on behalf of the Owners of the Notes. In the event that such conveyance is deemed to be a loan, the parties intend that the Depositor shall be deemed to have granted to the Issuer a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor under the Loan Sale Agreement, the Seller has filed, in the appropriate office or offices in the States of Delaware and Florida, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Trust Estate. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Trust Estate. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Delaware and Florida a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's, the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, or on each Subsequent Transfer Date with respect to the Subsequent Home Equity Loan, the Seller and the Depositor agree to:
(i) deliver without recourse to the Custodian, on behalf of the Indenture Trustee, on the Closing Date with respect to each Home Equity Loan, (A) the original Mortgage Notes endorsed in blank or to the order of _______________, as Indenture Trustee for the IMC Adjustable Rate Home Equity Loan Asset Backed Notes, Series 199__-__ without recourse,"
Appears in 1 contract
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day the Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys without recourse, to the IssuerTrustee for the benefit of the Owners, all of its their respective right, title and interest in and to the Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans on or before the Cut-Off Date). The transfer by the Seller to the Depositor, and the transfer by the Depositor to the Trust, of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant Seller to the Indenture, Depositor and a sale by the Issuer will pledge the Trust Estate Depositor to the Indenture Trustee to be held on behalf of the Owners of the NotesTrust. In the event that either such conveyance is deemed to be a loan, the parties intend that the Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor under the Loan Sale AgreementDepositor, the Seller has filed, in the appropriate office or offices in the States State of Delaware and Florida, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Seller as the a debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Trust Estate. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware and Florida a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a the debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's, Trustee's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Seller agrees to:
(i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan, (A) the original Notes (or in the case of not more than 0.50% of the aggregate Loan Balance of the Home Equity Loans, a lost note affidavit executed by an Authorized Officer of the Seller) endorsed in blank or to the order of the Trustee, (B) (I) the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy or (II) the attorney's opinion of title, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or the Seller, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller from the applicable recording office) or a copy of the Mortgage certified as a true copy by the closing agent or the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost or retained by the recording office;
(ii) cause, within 60 days following the Startup Day, assignments of the Mortgages to "The Chase Manhattan Bank, as Trustee of IMC Home Equity Loan Trust 1998-5 under the Pooling and Servicing Agreement dated as of September 1, 1998" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Seller shall not be required to prepare an assignment for any Mortgage described in subsection (b)(i)(E)(2) above with respect to which the original recording information has not yet been received from the recording office until such information is received; provided, further, that the Seller shall not be required to record an assignment of a Mortgage if the Seller furnishes to the Trustee on each Subsequent Transfer Date or before the Startup Day, at the Seller's expense, an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity LoanLoans (in form and substance satisfactory to the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded upon the occurrence of a Servicer Termination Event; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller, within one year after the Startup Day . Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Seller and the Depositor agree to:shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, the Seller shall deliver to the Custodian, on behalf of the Trustee a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by the Seller, which list shall state the reason why the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee shall make an immediate demand on the Seller to prepare such Mortgage assignments provided; that no such demand shall be made with respect to Home Equity Loans located in those jurisdictions listed in the opinion of counsel described in (ii) above. Thereafter, the Custodian, on behalf of the Trustee shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the preceding paragraph, the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify the Seller of the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. A copy of such notice shall be sent by the Custodian, on behalf of the Trustee to the Rating Agencies. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month the Seller demonstrates to the reasonable satisfaction of the Rating Agencies that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Trustee, the Seller continues to demonstrate to the reasonable satisfaction of the Rating Agencies that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office or by the closing agent or the Seller. Copies of all Mortgage assignments received by the Custodian, on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of the Seller.
(c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit E.
(d) The Seller shall transfer, assign, set over and otherwise convey without recourse, to the Depositor, and the Depositor shall transfer, assign, set over and otherwise convey without recourse to the Trustee all right, title and interest of the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by the Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the Seller's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, the Seller agrees to (i) deliver without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by the Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in same required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Custodian, on behalf of the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller (i) the original Note relating thereto, endorsed without recourse or representation, to the Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Imc Home Equity Loan Trust 1998 5)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, Estate and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware __________, ___________ and Florida__________, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's, the Owners' and the Certificate Insurer's interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the IssuerTrustee's, the Owners' and the Note Certificate Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost,
(ii) cause, within 60 days following the Startup Day, assignments of the Mortgages to "[Name of Trustee], as Trustee of __________ Home Equity Loan Trust under the Pooling and Servicing Agreement dated as of __________ 1, 199_" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee and the Certificate Insurer, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity Loans (in form and substance and from counsel satisfactory to the Certificate Insurer and to the Rating Agencies); notwithstanding the furnishing of such opinion of counsel, however, the Certificate Insurer may, in its reasonable discretion after consultation with the Depositor prior to the date on which all assignments of Mortgages are required to be filed hereunder, require the filing of assignments of Mortgages in any state that is the subject of such opinions; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer of such Seller's failure to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 with respect to one or more Home Equity Loans shall be accomplished at the expense of the Seller delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of such Seller in and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that such Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the order of the Seller delivering such Home Equity Loan, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, each Seller agrees to (i) deliver without recourse to the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by such Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller delivering such Qualified Replacement Mortgage (i) the original Note relating thereto, endorsed without recourse or representation, to such Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Depositor agree to:File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller that delivered the corresponding Home Equity Loan shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contisecurities Asset Funding Corp)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's, Trustee's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost,
(ii) cause, within 60 days following the Startup Day, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1997-3 under the Pooling and Servicing Agreement dated as of June 1, 1997" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity LoanLoans (in form and substance and from counsel satisfactory to the Rating Agencies); and
(iii) deliver the title insurance policy or title searches, the Seller original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor agree to:(but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Rating Agencies. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Trustee that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Trustee that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contimortgage Home Equity Loan Trust 1997-3)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's, the Certificate Insurer's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York, Nevada and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the IssuerTrustee's, the Certificate Insurer's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost;
(ii) cause, within 60 days following the Startup Day or 15 days following the receipt from the relevant state authorities, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1998-2 under the Pooling and Servicing Agreement dated as of June 1, 1998" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee and the Certificate Insurer, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity Loans (in form and substance and from counsel satisfactory to the Rating Agencies and the Certificate Insurer); notwithstanding the furnishing of such opinion of counsel, however, the Certificate Insurer may, in its reasonable discretion after consultation with the Depositor prior to the date on which all assignments of Mortgages are required to be filed hereunder, require the filing of assignments of Mortgages in any state that is the subject of such opinions; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding the delivery of opinions specified in clause (i) above the Trustee shall cause to be recorded each assignment of a Mortgage upon the earliest to occur of (a) the reasonable direction of the Certificate Insurer, (b) the removal of the Servicer pursuant to Section 8.20 hereof or (c) notification to the Trustee of the occurrence of a bankruptcy or insolvency relating to the Mortgagor. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer of such Seller's failure to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 with respect to one or more Home Equity Loans shall be accomplished at the expense of the Seller delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of such Seller in and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that such Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the order of the Seller delivering such Home Equity Loan, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, each Seller agrees to (i) deliver without recourse to the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by such Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller delivering such Qualified Replacement Mortgage (i) the original Note relating thereto, endorsed without recourse or representation, to such Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Depositor agree to:File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller that delivered the corresponding Home Equity Loan shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contisecurities Asset Funding Corp)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's, Trustee's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost,
(ii) cause, within 60 days following the Startup Day, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1997-1 under the Pooling and Servicing Agreement dated as of February 1, 1997" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity Loans (in form and substance and from counsel satisfactory to the Rating Agencies); and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Rating Agencies. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Trustee that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Trustee that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 with respect to one or more Home Equity Loans shall be accomplished at the expense of the Seller delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of such Seller in and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage after the applicable Replacement Cut-Off Date; provided, however, that such Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on the order of the Seller delivering such Home Equity Loan, all of its right, title and interest in and to such released Home Equity Loan and all the Trust's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable Replacement Cut-Off Date; provided, however, that the Trust shall reserve and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, each Seller agrees to (i) deliver without recourse to the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by such Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection with the conveyance of a Qualified Replacement Mortgage the Trustee shall deliver on the date of conveyance of such Qualified Replacement Mortgage and on the order of the Seller delivering such Qualified Replacement Mortgage (i) the original Note relating thereto, endorsed without recourse or representation, to such Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Depositor agree to:File with respect thereto.
(h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder's office unrecorded due to a defect therein, the Seller that delivered the corresponding Home Equity Loan shall prepare a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Contimortgage Home Equity Loan Trust 1997-1)
Conveyance of the Home Equity Loans and Qualified Replacement Mortgages. (a) On the Closing Date Startup Day each Seller, concurrently with the execution and delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to the Depositor and the Depositor, concurrently with the execution and delivery hereof, transfers, assigns, sets over and otherwise conveys conveys, without recourse, to the IssuerTrust all of their respective right, title and interest in and to the Trust Estate; provided, however, that each Seller reserves and retains all of its right, title and interest in and to the principal (including Prepayments) collected and interest accrued on each Home Equity Loans (other than payments of principal and interest due on the Home Equity Loans Loan on or before prior to the Cut-Off Date). The transfer by the Depositor of the Home Equity Loans set forth on the Schedule of Home Equity Loans to the Issuer Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Depositor. Pursuant It is intended that the sale, transfer, assignment and conveyance herein contemplated constitute a sale of the Home Equity Loans conveying good title thereto free and clear of any liens and encumbrances from each Seller to the Indenture, Depositor and from the Issuer will pledge Depositor to the Trust Estate to and that the Indenture Trustee to Home Equity Loans not be held on behalf part of the Owners Depositor's or either Seller's estate in the event of the Notesinsolvency. In the event that such conveyance is deemed to be a loan, the parties intend that each Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Issuer Trustee a first priority perfected security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. In connection with the such sale, transfer, assignment, and conveyance from the Seller Sellers to the Depositor under the Loan Sale AgreementDepositor, the each Seller has filed, in the appropriate office or offices in the States of Delaware Delaware, Pennsylvania and FloridaNevada, as the case may be, a UCC-1 financing statement executed by the such Seller as debtor, naming the Depositor as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the a Seller as the debtor and the Depositor as the secured party in on such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the such Seller's entire right, title and interest in and to the Trust Estate. In connection with such filing, the each Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the DepositorTrustee's, the Certificate Insurer's and the Owners' interest in the Trust Estate. In connection with the such sale, transfer, assignment, and conveyance from the Depositor to the IssuerTrustee, the Depositor has filed, in the appropriate office or offices in the States of Delaware New York, Nevada and Florida Delaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer Trustee as secured party and listing the Home Equity Loans and the other property described above as collateral. The characterization of the Depositor as a debtor and the Issuer Trustee as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in and to the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the IssuerTrustee's, the Certificate Insurer's and the Owners' and the Note Insurer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, on behalf of the Owners of the Notes, as the secured party and listing the Home Equity Loans and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of the Notes.
(b) In connection with the transfer and assignment of the Initial Home Equity Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day with respect to each Home Equity Loan
(A) the original Notes endorsed in blank or to the order of the Trustee, (B) the original title insurance policy or a copy certified by the issuer of the title insurance policy, or the attorney's opinion of title, (C) originals or certified copies of all intervening assignments, showing a complete chain of title from origination to the Trustee, if any, including warehousing assignments, with evidence of recording thereon, (D) originals of all assumption and modification agreements, if any and (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the related Seller from the applicable recording office or a certified copy thereof if such original Mortgage has not been returned to the related Seller from the applicable recording office), or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost;
(ii) cause, within 60 days following the Startup Day or 15 days following the receipt from the relevant state authorities, assignments of the Mortgages to "Manufacturers and Traders Trust Company, as Trustee of ContiMortgage Home Equity Loan Trust 1998-3 under the Pooling and Servicing Agreement dated as of September 1, 1998" to be submitted for recording in the appropriate jurisdictions; provided, however, that the Depositor shall not be required to record an assignment of a Mortgage if the Depositor furnishes to the Trustee and the Certificate Insurer, on each Subsequent Transfer Date or before the Startup Day, at the Depositor's expense an opinion of counsel with respect to the Subsequent relevant jurisdiction that such recording is not necessary to perfect the Trustee's interest in the related Home Equity LoanLoans (in form and substance and from counsel satisfactory to the Rating Agencies and the Certificate Insurer); notwithstanding the furnishing of such opinion of counsel, however, the Seller and Certificate Insurer may, in its reasonable discretion after consultation with the Depositor agree to:prior to the date on which all assignments of Mortgages are required to be filed hereunder, require the filing of assignments of Mortgages in any state that is the subject of such opinions; and
(iii) deliver the title insurance policy or title searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments, to the Trustee within 15 days of receipt thereof by the Depositor (but in any event, with respect to any Mortgage as to which original recording information has been made available to the Depositor, within one year after the Startup Day). Notwithstanding the delivery of opinions specified in clause (i) above the Trustee shall cause to be recorded each assignment of a Mortgage upon the earliest to occur of (a) the reasonable direction of the Certificate Insurer, (b) the removal of the Servicer pursuant to Section 8.20 hereof or (c) notification to the Trustee of the occurrence of a bankruptcy or insolvency relating to the Mortgagor. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Not later than ten days following the end of the 60-day period referred in clause (ii) of the second preceding paragraph, each Seller shall deliver to the Trustee a list of all Mortgages with respect to Home Equity Loans delivered by such Seller for which no Mortgage assignment has yet been submitted for recording by such Seller, which list shall state the reason why such Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Trustee shall make an immediate demand on such Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer of such Seller's failure to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (ii) of the second preceding paragraph, each Seller shall promptly prepare a Mortgage assignment for any Mortgage with respect to Home Equity Loans delivered by such Seller for which original recording information is subsequently received by such Seller, and shall promptly deliver a copy of such Mortgage assignment to the Trustee. Each Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment with respect to Home Equity Loans delivered by such Seller. In the event that a Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Trustee shall notify such Seller of such Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxiii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month either Seller then required to deliver such a completed assignment demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Trustee, such Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such
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Samples: Pooling and Servicing Agreement (Contisecurities Asset Funding Corp)
