Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense: (a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and (b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"): (i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note; (ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form; (iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded; (iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded; (v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000; (vi) the original of any guaranty executed in connection with the Mortgage Note; (vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and (viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered: (i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans, (ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and (iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 12 contracts
Samples: Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-D), Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-E), Mortgage Loan Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-F)
Obligations of Seller Upon Sale. (a) In connection with any transfer pursuant to Section 2.012.01 hereof, the Seller further agrees, at its own expense:
(a) to deliver , on or prior to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage LoansDate, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(bx) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, Purchaser pursuant to this Agreement by and (y) to deliver to the Closing Date for Purchaser and the Trustee a computer file containing a true and complete list of all the Mortgage LoansLoans specifying, among other things, for each Mortgage Loan, as of the Cut-off Date, its account number and Cut-off Date Principal Balance. The Such file (the "Mortgage Loan Schedule Schedule") which is Exhibit A set forth as Exhibits D-1 and D-2 to the Sale Pooling and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any such transfer by and assignment of the SellerMortgage Loans, the Seller shall shall, on behalf of the Purchaser, deliver to and deposit with the order of the Purchaser Trustee the following documents for or instruments (with respect to each Mortgage Loan, a "Mortgage File") with respect to each Mortgage Loan (the "Related Documentation"):so transferred and assigned:
(i) the original Mortgage Note Note, endorsed in blank oror with respect to any lost Mortgage Note, if the original Mortgage a Lost Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyedAffidavit, together with a copy of the related Mortgage Notemortgage note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage Mortgage with evidence of recording on it (noting thereon, and the presence original recorded power of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan attorney, if the Mortgage Loan is was executed pursuant to a MOM Loan) orpower of attorney, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, thereon or, if any original intervening assignment such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, certified to be a true and complete copy of the Seller or the Purchaser stating that the original submitted for recording;
(iii) an original Assignment of Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned in blank;
(iv) an original copy of any intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, of Mortgage showing a certificate by the appropriate county recording office where the mortgage is recordedcomplete chain of assignments;
(v) the original or a certified copy of the lender's title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;insurance policy; and
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original or copies of each assumption, modification, consolidation, written assurance or substitution agreement relating agreement, if any. If any of the documents referred to in Section 2.02(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) Trustee no later than the Closing Date, of a copy of each such document certified by the Seller or the Company in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Seller, delivery to the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.02(v) above, the Seller shall deliver or cause to be delivered to the Trustee, a written commitment or interim binder or preliminary report of title issued by the title insurance or escrow company, with the original to be delivered to the Trustee, promptly upon receipt thereof. The Seller shall deliver or cause to be delivered to the Trustee promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to no less than 50% any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Mortgage Loans,
(ii) no later than Seller shall have 120 days to cure such defect or deliver such missing document to the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty Trustee or 150 days following the Closing Date, with respect to in the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as case of missing Mortgages or Assignments (or within 90 days of the Closing Date, it has caused earlier of Seller's discovery or receipt of notification if such defect would cause the portions of the Electronic Ledger relating to the related Mortgage Loans maintained by the Seller Loan not to be clearly and unambiguously marked to indicate a "qualified mortgage" for REMIC purposes or that the Mortgage Loans have been sold Loan is defective in a manner that would cause it to be a "defective obligation" within the Purchaser, and sold by the Purchaser meaning of Treasury regulations relating to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from REMICs). If the Seller does not cure such defect or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitutiondeliver such missing document within such time period, the Seller shall cause the portions either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03 of the Electronic Ledgers relating Pooling and Servicing Agreement. It is understood and agreed that the obligations of the Seller set forth in this Section 2.02 to cure, repurchase or substitute for a defective Mortgage Loan constitute the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction sole remedies of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that respecting a purchase of the Mortgage Loans from the Seller missing or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loansdefective document. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.01. Notwithstanding The parties hereto intend that the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is transaction set forth herein be a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property described above. However, if In the transfer were event the transaction set forth herein is deemed not to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants grants to the Purchaser a Security Interest security interest in all of the Seller's right, title and interest in in, to and under the Mortgage Loans and other property described above, whether now existing now or in the futurehereafter created, to secure all of the Seller's obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law. The Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Funding Corp. ABFC Asset Backed Certificates Series 2004-Opt3), Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt2), Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt1)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title title, and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 6 contracts
Samples: Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-N), Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-K), Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-M)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked attached as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 UCC1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 UCC1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 UCC1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 UCC1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage LoansLoans in each Loan Group,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in each Loan Group in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title title, and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 3 contracts
Samples: Purchase Agreement (CWABS Revolving Home Equity Loan Trust Series, 2004-R), Purchase Agreement (CWABS Revolving Home Equity Loan Trust Series, 2004-Q), Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-T)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Initial Mortgage Loans, specifying for each Initial Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and;
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Initial Mortgage Loans, and by each Subsequent Closing Date for the related Additional Home Equity Loans;
(c) to deliver to the Purchaser, or at the Purchaser's direction to the Indenture Trustee, an officer's Certificate confirming the satisfaction of each of the conditions precedent in Section 2.01(c) of the Sale and Servicing Agreement by each Subsequent Closing Date; and
(d) to deliver to the Purchaser, or at the Purchaser's direction to the Indenture Trustee, a revised Mortgage Loan Schedule reflecting the addition of the Additional Home Equity Loans within 15 days following each Subsequent Closing Date. The initial Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York California describing the applicable Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party (and indicating that the Mortgage Loans have been assigned to the Trust Trust) and all necessary Continuation Statements and any additional amendments to the UCC-1 Financing Statements due required to reflect a change in the name or corporate structure of the state Seller or the filing of incorporation any additional UCC-1 financing statements due to the change in the principal offices of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware California describing the applicable Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional amendments to the UCC-1 Financing Statements due required to reflect a change in the name or corporate structure of the state Purchaser or the filing of incorporation any additional UCC-1 financing statements due to the change in the principal offices of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) SystemMERS(R)System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation for the Initial Mortgage Loans will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Initial Mortgage Loans,
(ii) no later than the twentieth twenty-first day after the Closing Date, with respect to no less than 40% of the Initial Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Initial Mortgage Loans. The Related Documentation for the Additional Home Equity Loans will be delivered:
(i) no later than the twenty-first day after the relevant Subsequent Closing Date, with respect to no less than 80% of the relevant Additional Home Equity Loans; and
(ii) within thirty days following the relevant Subsequent Closing Date, with respect to the remaining relevant Additional Home Equity Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Initial Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Initial Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the relevant Subsequent Closing Date or applicable date of substitution, as applicable, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Additional Home Equity Loans or Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale for accounting and other purposes by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 3 contracts
Samples: Purchase Agreement (Cwabs Inc Revolving Home Eq Loan Asset BKD Notes Ser 2001-B), Purchase Agreement (Cwabs Inc), Purchase Agreement (Cwabs Inc)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.012.01 hereof, the Seller further agrees, at its own expense:
, on or prior to the Closing Date, (a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser or to the Indenture Trustee, Trustee as assignee of the Purchaser, Purchaser pursuant to this Agreement by and (b) to deliver to the Closing Purchaser (or its designee, the Indenture Trustee) a computer file containing a true and complete list of all such Mortgage Loans specifying, among other things, for each such Mortgage Loan, as of the Cut-Off Date, (1) its account number and (2) the Cut-Off Date for the Mortgage LoansPrincipal Balance. The Mortgage Loan Schedule is Such file, which forms a part of Exhibit A to the Sale and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any such transfer by the Seller, the Seller shall agrees to:
(i) on behalf of the Purchaser, on or before the Closing Date, deliver to and deposit with the order Purchaser (or its designee, the Indenture Trustee), the Mortgage Loan Schedule in computer readable format; and
(ii) on behalf of the Purchaser, deliver to and deposit with the Purchaser (or its designee, the Indenture Trustee) the Mortgage Note in respect of each Mortgage Loan together with the following documents for relating to each such Mortgage Loan (the "Related DocumentationDocuments"):) on or before the Closing Date. The Mortgage Note and the Related Documents shall be in the following form:
(iA) the original Mortgage Note Note, endorsed in blank orblank, if the or a copy of such original Mortgage Note has been lost or destroyed and not replaced, with an accompanying Lost Note Affidavit;
(B) the original lost note affidavit Assignment of Mortgage from the Seller stating that the original to "Deutsche Bank National Trust Company, as Indenture Trustee for IndyMac Home Equity Mortgage Note was lostLoan Asset-Backed Trust, misplacedSeries 2006-H1", or destroyed, together with a copy of the related Mortgage Notewhich assignment shall be in form and substance acceptable for recording;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iiiC) the original recorded mortgage Mortgage, with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating thereon, provided, that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because recording to the original Mortgage appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee an accurate a certified true copy of such original Mortgage so certified by the mortgageSeller, together with (i) when the delay is caused by the public recording office, an Officer's Certificate a certificate of the Seller certifying that such original Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or the Purchaser stating that cause to be delivered the original mortgage recorded Mortgage to the Indenture Trustee promptly upon receipt of the original recorded Mortgage;
(D) [reserved];
(E) intervening assignments, if any, with evidence of recording thereon, provided that if such intervening assignment has been dispatched delivered for recording to the appropriate public recording official or (ii) when office of the original mortgage jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee a certified true copy of such intervening assignment so certified by the Seller, together with a certificate by of the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original Seller certifying that such intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public so delivered to such recording office; in all such instances, an Officer's Certificate of the Seller shall deliver or the Purchaser stating that cause to be delivered the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when Indenture Trustee promptly upon receipt of the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loanassignment; and
(viiiF) originals of all assumption and modification agreements, if any, provided, however, that as to any security agreementMortgage Loan, chattel mortgage, or equivalent instrument executed if as evidenced by an Opinion of Counsel delivered to and in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly form and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust substance satisfactory to the Indenture Trustee, the Insurer and that a purchase the Rating Agencies, (x) an optical image or other representation of those the related documents specified in clause (ii)(C) above is enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Loans from the Loan to transfer or perfect its interest in such Mortgage Loan, such optical image or other representation may be delivered as required in clause (ii) above. The Seller or hereby confirms to the Purchaser will violate that it has made the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate clearly and unambiguously that those such Mortgage Loans have been transferred sold to the Purchaser by the Seller, then subsequently sold by the Purchaser to the Trust at the direction and constitute part of the Purchaser and that they have been Granted by Trust in accordance with the Trust to the Indenture Trustee, and that a purchase terms of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage LoansSale and Servicing Agreement. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.01 above. Notwithstanding The Seller acknowledges that the characterization Indenture Trustee is required to review the Mortgage Notes and the Related Documents pursuant to Sections 2.01(d) and (e) of the Notes as debt for federalSale and Servicing Agreement and if the Indenture Trustee finds any document or documents not to have been properly executed, state, and local income and franchise tax purposesor to be missing or to be defective in any material respect, the transfer Indenture Trustee is required to notify the Seller. If the Seller does not within the time period specified in Section 2.02(b) of the Sale and Servicing Agreement correct or cure such omission or document deficiency, the Seller shall either repurchase such relevant Mortgage Loans is Loan directly from the Trust or substitute an Eligible Substitute Mortgage Loan for such Mortgage Loan, in either case, within the time frame and in the manner specified in Section 2.02(b) of the Sale and Servicing Agreement. The parties hereto expressly intend that the transaction set forth herein be a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property described above. It is, further, not the parties' intent that such conveyance be deemed a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, if in the transfer were event that, notwithstanding the parties' intent, the transaction set forth herein is deemed not to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants grants to the Purchaser a Security Interest security interest in all of the Seller's right, title and interest in in, to and under the Mortgage Loans and other property described aboveLoans, whether now existing now or in the futurehereafter created, to secure all of the Seller's obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law, including, without limitation, Articles 8 and 9 of the Uniform Commercial Code in effect in the applicable state. The Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Sale and Servicing Agreement. Without limiting the generality of the foregoing, the Seller hereby agrees to take such actions described in Section 2.01(a) of the Sale and Servicing Agreement as are necessary to complete and file any UCC Financing Statements and any continuation statements required to perfect and protect the Purchaser's interest in the Mortgage Loans.
Appears in 1 contract
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
; (ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
; (iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
; (iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
; (v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
; (vi) the original of any guaranty executed in connection with the Mortgage Note;
; (vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
and (viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
, (ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
and (iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (Cwabs Inc)
Obligations of Seller Upon Sale. (a) In connection with any the transfer pursuant to Section 2.012.01 hereof, the Seller further agrees, at its own expense:
, on or prior to the Closing Date, (a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser or to the Indenture Trustee, Trustee as assignee of the Purchaser, Purchaser pursuant to this Agreement by and (b) to deliver to the Closing Purchaser (or its designee, the Indenture Trustee) a computer file containing a true and complete list of all such Mortgage Loans specifying, among other things, for each such Mortgage Loan, as of the Cut-off Date, (1) its account number and (2) the Cut-off Date for the Mortgage LoansPrincipal Balance. The Mortgage Loan Schedule is Such file, which forms a part of Exhibit A to the Sale and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party .
(and indicating that the Mortgage Loans have been pledged to the Indenture Trusteeb) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any such transfer by the Seller, the Seller shall agrees to:
(i) on behalf of the Purchaser, on or before the Closing Date, deliver to and deposit with the order Purchaser (or its designee, the Indenture Trustee), the Mortgage Loan Schedule in computer readable format; and
(ii) on behalf of the Purchaser, deliver to and deposit with the Purchaser (or its designee, the Indenture Trustee) the Mortgage Note in respect of each Mortgage Loan together with the following documents for relating to each such Mortgage Loan (the "“Related Documentation"):Documents”) on or before the Closing Date. The Mortgage Note and the Related Documents shall be in the following form:
(iA) the original Mortgage Note Note, endorsed in blank orblank, if the or a copy of such original Mortgage Note has been lost or destroyed and with an accompanying Lost Note Affidavit;
(B) if such Mortgage Loan is not replaceda MERS Mortgage Loan, an the original lost note affidavit Assignment of Mortgage from the Seller stating that the original to “Deutsche Bank National Trust Company, as Indenture Trustee for IndyMac Home Equity Mortgage Note was lostLoan Asset-Backed Trust, misplacedSeries 2006-H4”, or destroyed, together with a copy of the related Mortgage Notewhich assignment shall be in form and substance acceptable for recording;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iiiC) the original recorded mortgage Mortgage, with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating thereon, provided, that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because recording to the original Mortgage appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee an accurate a certified true copy of such original Mortgage so certified by the mortgageSeller, together with (i) when the delay is caused by the public recording office, an Officer's Certificate a certificate of the Seller certifying that such original Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or the Purchaser stating that cause to be delivered the original mortgage recorded Mortgage to the Indenture Trustee promptly upon receipt of the original recorded Mortgage;
(D) intervening assignments, if any, with evidence of recording thereon, provided that if such intervening assignment has been dispatched delivered for recording to the appropriate public recording official or (ii) when office of the original mortgage jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee a certified true copy of such intervening assignment so certified by the Seller, together with a certificate by of the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original Seller certifying that such intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public so delivered to such recording office; in all such instances, an Officer's Certificate of the Seller shall deliver or the Purchaser stating that cause to be delivered the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when Indenture Trustee promptly upon receipt of the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loanassignment; and
(viiiE) originals of all assumption and modification agreements, if any, provided, however, that as to any security agreementMortgage Loan, chattel mortgage, or equivalent instrument executed if as evidenced by an Opinion of Counsel delivered to and in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly form and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust substance satisfactory to the Indenture Trustee, the Insurer and that a purchase the Rating Agencies, (x) an optical image or other representation of those the related documents specified in clauses (ii)(C), (D) and (E) above is enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Loans from the Loan to transfer or perfect its interest in such Mortgage Loan, such optical image or other representation may be delivered as required in clause (ii) above. The Seller or hereby confirms to the Purchaser will violate that it has made the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate clearly and unambiguously that those such Mortgage Loans have been transferred sold to the Purchaser by the Seller, then subsequently sold by the Purchaser to the Trust at the direction and constitute part of the Purchaser and that they have been Granted by Trust in accordance with the Trust to the Indenture Trustee, and that a purchase terms of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage LoansSale and Servicing Agreement. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.01 above. Notwithstanding The Seller acknowledges that the characterization Indenture Trustee is required to review the Mortgage Notes and the Related Documents pursuant to Section 2.01(g) of the Notes as debt for federalSale and Servicing Agreement and if the Indenture Trustee finds any document or documents not to have been properly executed, state, and local income and franchise tax purposesor to be missing or to be defective in any material respect, the transfer Indenture Trustee is required to notify the Seller. If the Seller does not within the time period specified in Section 2.02(b) of the Sale and Servicing Agreement correct or cure such omission or document deficiency, the Seller shall either repurchase such relevant Mortgage Loans is Loan directly from the Trust or substitute an Eligible Substitute Mortgage Loan for such Mortgage Loan, in either case, within the time frame and in the manner specified in Section 2.02(b) of the Sale and Servicing Agreement. The parties hereto expressly intend that the transaction set forth herein be a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's ’s right, title and interest in and to the Mortgage Loans and other property described above. It is, further, not the parties’ intent that such conveyance be deemed a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, in the event that, notwithstanding the parties’ intent, the transaction set forth herein is deemed not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller’s right, title and interest in, to and under the Mortgage Loans, whether now existing now or in the futurehereafter created, to secure all of the Seller's ’s obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law, including, without limitation, Articles 8 and 9 of the Uniform Commercial Code in effect in the applicable state. The Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Sale and Servicing Agreement. Without limiting the generality of the foregoing, the Seller hereby agrees to take such actions described in Section 2.01(a) of the Sale and Servicing Agreement as are necessary to complete and file any UCC Financing Statements and any continuation statements required to perfect and protect the Purchaser’s interest in the Mortgage Loans.
Appears in 1 contract
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the applicable Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements financing statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the applicable Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements financing statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale for accounting and other purposes by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (Cwabs Inc)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) SystemMERS(R)System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (Cwabs Inc)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
; (vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-O)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.012.01(a), the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked attached as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 UCC1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 UCC1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 UCC1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 UCC1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i1) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii2) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii3) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv4) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v5) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi6) the original of any guaranty executed in connection with the Mortgage Note;
(vii7) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) 8) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i1) no later than the Closing Date, with respect to no less than 50% of the Mortgage LoansLoans in each Loan Group,
(ii2) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in each Loan Group in addition to those delivered on the Closing Date, and
(iii3) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title title, and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if to provide for the possibility that the transfer were to might be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title title, and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of that the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-G)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
and (viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title title, and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-L)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Initial Mortgage Loans, specifying for each Initial Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and;
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Initial Mortgage Loans, and by each Subsequent Closing Date for the related Additional Home Equity Loans;
(c) to deliver to the Purchaser, or at the Purchaser's direction to the Indenture Trustee, the Owner Trustee, and the Credit Enhancer, an Officer's Certificate confirming the satisfaction of each of the conditions precedent in Section 2.01(c) of the Sale and Servicing Agreement by each Subsequent Closing Date; and
(d) to deliver to the Purchaser, or at the Purchaser's direction to the Indenture Trustee, a revised Mortgage Loan Schedule reflecting the addition of the Additional Home Equity Loans within 15 days following each Subsequent Closing Date. The initial Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements financing statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements financing statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.incorporation
Appears in 1 contract
Samples: Purchase Agreement (Cwabs Inc)
Obligations of Seller Upon Sale. (a) In connection with any the transfer pursuant to Section 2.012.01 hereof, the Seller further agrees, at its own expense:
, on or prior to the Closing Date, (a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser or to the Indenture Trustee, Trustee as assignee of the Purchaser, Purchaser pursuant to this Agreement by and (b) to deliver to the Closing Purchaser (or its designee, the Indenture Trustee) a computer file containing a true and complete list of all such Mortgage Loans specifying, among other things, for each such Mortgage Loan, as of the Cut-off Date, (1) its account number and (2) the Cut-off Date for the Mortgage LoansPrincipal Balance. The Mortgage Loan Schedule is Such file, which forms a part of Exhibit A to the Sale and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party .
(and indicating that the Mortgage Loans have been pledged to the Indenture Trusteeb) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any such transfer by the Seller, the Seller shall agrees to:
(i) on behalf of the Purchaser, on or before the Closing Date, deliver to and deposit with the order Purchaser (or its designee, the Indenture Trustee), the Mortgage Loan Schedule in computer readable format; and
(ii) on behalf of the Purchaser, deliver to and deposit with the Purchaser (or its designee, the Indenture Trustee) the Mortgage Note in respect of each Mortgage Loan together with the following documents for relating to each such Mortgage Loan (the "“Related Documentation"):Documents”) on or before the Closing Date. The Mortgage Note and the Related Documents shall be in the following form:
(iA) the original Mortgage Note Note, endorsed in blank orblank, if the or a copy of such original Mortgage Note has been lost or destroyed and with an accompanying Lost Note Affidavit;
(B) if such Mortgage Loan is not replaceda MERS Mortgage Loan, an the original lost note affidavit Assignment of Mortgage from the Seller stating that the original to “Deutsche Bank National Trust Company, as Indenture Trustee for IndyMac Home Equity Mortgage Note was lostLoan Asset-Backed Trust, misplacedSeries 2007-H1”, or destroyed, together with a copy of the related Mortgage Notewhich assignment shall be in form and substance acceptable for recording;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iiiC) the original recorded mortgage Mortgage, with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating thereon, provided, that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because recording to the original Mortgage appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee an accurate a certified true copy of such original Mortgage so certified by the mortgageSeller, together with (i) when the delay is caused by the public recording office, an Officer's Certificate a certificate of the Seller certifying that such original Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or the Purchaser stating that cause to be delivered the original mortgage recorded Mortgage to the Indenture Trustee promptly upon receipt of the original recorded Mortgage;
(D) intervening assignments, if any, with evidence of recording thereon, provided that if such intervening assignment has been dispatched delivered for recording to the appropriate public recording official or (ii) when office of the original mortgage jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee a certified true copy of such intervening assignment so certified by the Seller, together with a certificate by of the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original Seller certifying that such intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public so delivered to such recording office; in all such instances, an Officer's Certificate of the Seller shall deliver or the Purchaser stating that cause to be delivered the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when Indenture Trustee promptly upon receipt of the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loanassignment; and
(viiiE) originals of all assumption and modification agreements, if any, provided, however, that as to any security agreementMortgage Loan, chattel mortgage, or equivalent instrument executed if as evidenced by an Opinion of Counsel delivered to and in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly form and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust substance satisfactory to the Indenture Trustee, the Insurer and that a purchase the Rating Agencies, (x) an optical image or other representation of those the related documents specified in clauses (ii)(C), (D) and (E) above is enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Loans from the Loan to transfer or perfect its interest in such Mortgage Loan, such optical image or other representation may be delivered as required in clause (ii) above. The Seller or hereby confirms to the Purchaser will violate that it has made the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate clearly and unambiguously that those such Mortgage Loans have been transferred sold to the Purchaser by the Seller, then subsequently sold by the Purchaser to the Trust at the direction and constitute part of the Purchaser and that they have been Granted by Trust in accordance with the Trust to the Indenture Trustee, and that a purchase terms of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage LoansSale and Servicing Agreement. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.01 above. Notwithstanding The Seller acknowledges that the characterization Indenture Trustee is required to review the Mortgage Notes and the Related Documents pursuant to Section 2.01(g) of the Notes as debt for federalSale and Servicing Agreement and if the Indenture Trustee finds any document or documents not to have been properly executed, state, and local income and franchise tax purposesor to be missing or to be defective in any material respect, the transfer Indenture Trustee is required to notify the Seller. If the Seller does not within the time period specified in Section 2.02(b) of the Sale and Servicing Agreement correct or cure such omission or document deficiency, the Seller shall either repurchase such relevant Mortgage Loans is Loan directly from the Trust or substitute an Eligible Substitute Mortgage Loan for such Mortgage Loan, in either case, within the time frame and in the manner specified in Section 2.02(b) of the Sale and Servicing Agreement. The parties hereto expressly intend that the transaction set forth herein be a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's ’s right, title and interest in and to the Mortgage Loans and other property described above. It is, further, not the parties’ intent that such conveyance be deemed a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, in the event that, notwithstanding the parties’ intent, the transaction set forth herein is deemed not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller’s right, title and interest in, to and under the Mortgage Loans, whether now existing now or in the futurehereafter created, to secure all of the Seller's ’s obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law, including, without limitation, Articles 8 and 9 of the Uniform Commercial Code in effect in the applicable state. The Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Sale and Servicing Agreement. Without limiting the generality of the foregoing, the Seller hereby agrees to take such actions described in Section 2.01(a) of the Sale and Servicing Agreement as are necessary to complete and file any UCC Financing Statements and any continuation statements required to perfect and protect the Purchaser’s interest in the Mortgage Loans.
Appears in 1 contract
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked attached as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i1) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii2) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii3) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv4) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v5) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi6) the original of any guaranty executed in connection with the Mortgage Note;
(vii7) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) 8) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage LoansLoans in each Loan Group,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in each Loan Group in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title title, and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-A)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked attached as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 UCC1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 UCC1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 UCC1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 UCC1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
; (ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
; (iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-S)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Initial Mortgage Loans, specifying for each Initial Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and;
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Initial Mortgage Loans, and by each Subsequent Closing Date for the related Additional Home Equity Loans;
(c) to deliver to the Purchaser, or at the Purchaser's direction to the Indenture Trustee, the Owner Trustee, and the Credit Enhancer, an Officer's Certificate confirming the satisfaction of each of the conditions precedent in Section 2.01(c) of the Sale and Servicing Agreement by each Subsequent Closing Date; and
(d) to deliver to the Purchaser, or at the Purchaser's direction to the Indenture Trustee, a revised Mortgage Loan Schedule reflecting the addition of the Additional Home Equity Loans within 15 days following each Subsequent Closing Date. The initial Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements financing statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements financing statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) SystemMERS(R)System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
and (viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation for the Initial Mortgage Loans will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Initial Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Initial Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Initial Mortgage Loans. The Related Documentation for the Additional Home Equity Loans will be delivered:
(i) no later than the twentieth day after the relevant Subsequent Closing Date, with respect to no less than 80% of the relevant Additional Home Equity Loans; and
(ii) within thirty days following the relevant Subsequent Closing Date, with respect to the remaining relevant Additional Home Equity Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Initial Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Initial Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the relevant Subsequent Closing Date or applicable date of substitution, as applicable, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Additional Home Equity Loans or Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.described
Appears in 1 contract
Samples: Purchase Agreement (Cwabs Inc)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.012.01 hereof, the Seller further agrees, at its own expense:
expense on or prior to the Closing Date, (ai) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in cause its books and records to indicate that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, Purchaser pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A and (ii) to deliver to the Sale Purchaser, the Guarantor and the Trustee a computer file containing a true and complete list of all such Mortgage Loans specifying for each such Mortgage Loan, as of the Cut-off Date, (A) its account number and (B) the Cut-off Date Principal Balance. Such file, which forms a part of Exhibit B to the Pooling and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer conveyance by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with the Trustee, as assignee of the Purchaser, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan:
(a) the original Mortgage Note, bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed either (A) in blank, without recourse or (B) in the following form: "Pay to the order of Deutsche Bank National Trust Company, as Trustee for registered Holders of Ameriquest Mortgage Securities Inc., Series 2002-C, without recourse", or with respect to any lost Mortgage Note, an original Lost Note Affidavit; PROVIDED, HOWEVER, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the Purchaser aggregate Cut-off Date Principal Balance of which is less than or equal to 1.00% of the following documents for each Mortgage Loan (Pool Balance as of the "Related Documentation"):Cut-off Date;
(ib) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting thereon, and the presence original recorded power of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan attorney, if the Mortgage Loan is was executed pursuant to a MOM Loan) orpower of attorney, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, thereon or, if any original intervening assignment such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation lost or (ii) when the original intervening assignment has been lostis not otherwise available, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each copy of such Mortgage Loan with a Credit Limit in excess or power of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loansattorney, as the case may be, certified to be clearly a true and unambiguously markedcomplete copy of the original submitted for recording;
(c) an original Assignment, in form and substance acceptable for recording. The Mortgage shall make be assigned either (A) in blank, without recourse, or (B) to "Deutsche Bank National Trust Company, as Trustee for registered Holders of Ameriquest Mortgage Securities Inc., Series 2002-C, without recourse";
(d) an original copy of any intervening Assignment showing a complete chain of Assignments from the applicable originator to the last endorsee with evidence of recording thereon, or the original unrecorded intervening Assignment, in form and substance acceptable for recording;
(e) the original or a certified copy of lender's title insurance policy; and
(f) the original or copies of each assumption, modification, written assurance or substitution agreement, if any. The Seller hereby confirms to the Purchaser and the Trustee that it has caused the appropriate entries to be made in its general accounting records, to indicate that those such Mortgage Loans have been transferred to the Trust at the direction Trustee and constitute part of the Purchaser Trust in accordance with the terms of the Pooling and that they have Servicing Agreement. If any of the documents referred to in Section 2.02(b), (c) or (d) above has as of the Closing Date been Granted submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee or the Custodian no later than the Closing Date of a copy of each such document certified by the Trust Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Seller, delivery to the Indenture TrusteeTrustee or the Custodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and that a purchase complete copy of the Mortgage Loans from original. If the original lender's title insurance policy, or a certified copy thereof, was not delivered pursuant to Section 2.02(e) above, the Seller shall deliver or cause to be delivered to the Trustee or the Purchaser will violate Custodian, the rights original or a copy of a written commitment or interim binder or preliminary report of title issued by the Trusttitle insurance or escrow company, as secured party with the original or a certified copy thereof to be delivered to the Trustee or the Custodian, promptly upon receipt thereof. The Seller shall deliver or cause to be delivered to the Trustee or the Custodian promptly upon receipt thereof any other documents constituting a part of a Mortgage File received with respect to those any Mortgage LoansLoan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement among the Seller, the Master Servicer, the Trustee and the Guarantor, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the original Assignment from the Custodian and (iii) the date on which the Seller receives the related Mortgage recordation information from the applicable recorder's office) submit or cause to be submitted for recording, at no expense to the Purchaser, in the appropriate office for real property records, each Assignment referred to in Sections 2.02(c) and (d) above and shall execute each original Assignment referred to in section 2.02(c) above in the following form: "Deutsche Bank National Trust Company, as Trustee for registered Holders of Ameriquest Mortgage Securities Inc., Series 2002-C, without recourse." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of the Mortgages shall not be required to be completed and submitted for recording with respect to any Mortgage Loan only if the NIMS Insurer, the Guarantor, the Trustee and each Rating Agency has received an Opinion of Counsel, satisfactory in form and substance to the Trustee, the NIMS Insurer and the Guarantor on or before the Closing Date, to the effect that the recordation of such Assignment is not necessary to protect the Purchaser's interest in the related Mortgage Loan; PROVIDED, FURTHER, HOWEVER, notwithstanding the delivery of any Opinion of Counsel, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Purchaser, upon the earliest to occur of: (i) direction by Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master Servicer Event of Termination, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 of the Pooling and Servicing Agreement and (v) if the Seller is not the Master Servicer and with respect to any one Assignment, the occurrence of a bankruptcy of the Mortgagor under the related Mortgage or a foreclosure of the related Mortgage. In the event that any Mortgage Note is endorsed in blank as of the Closing Date, promptly following the Closing Date and in no event later than 45 days after the Closing Date, the Seller shall cause to be completed such endorsements "Pay to the order of Deutsche Bank National Trust Company, as Trustee for registered Holders of Ameriquest Mortgage Securities Inc., Series 2002-C, without recourse." Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Seller shall have 90 days to cure such defect or deliver such missing document to the Purchaser. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03 of the Pooling and Servicing Agreement. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.01. Notwithstanding The parties hereto intend that the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is transaction set forth herein be a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property described above. However, if In the transfer were event the transaction set forth herein is deemed not to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants grants to the Purchaser a Security Interest security interest in all of the Seller's right, title and interest in in, to and under the Mortgage Loans and other property described above, whether now existing now or in the futurehereafter created, to secure all of the Seller's obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Bk Pass THR Cert Ser 2002-C)
Obligations of Seller Upon Sale. In connection with any transfer the transfers pursuant to Section 2.01Sections 2.01(a) and (b), the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Initial Mortgage Loans, specifying for each Initial Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Initial Mortgage Loans. , and by each Subsequent Closing Date for the related Additional Home Equity Loans;
(c) to deliver to the Purchaser, or at the Purchaser's direction to the Indenture Trustee, the Owner Trustee, and the Credit Enhancer, an Officer's Certificate confirming the satisfaction of each of the conditions precedent in Section 2.01(b) of the Sale and Servicing Agreement by each Subsequent Closing Date; and
(d) to deliver to the Purchaser, or at the Purchaser's direction to the Indenture Trustee, a revised Mortgage Loan Schedule reflecting the addition of the Additional Home Equity Loans within 15 days following each Subsequent Closing Date The Initial Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked attached as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan transferred by it pursuant to Section 2.01(a) and (b) and its proceeds by preparing, executing, and filing a UCC-1 UCC1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 UCC1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 UCC1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 UCC1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i1) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii2) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii3) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv4) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v5) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi6) the original of any guaranty executed in connection with the Mortgage Note;
(vii7) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) 8) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation for the Initial Mortgage Loans will be delivered:
(i1) no later than the Closing Date, with respect to no less than 50% of the Initial Mortgage LoansLoans in each Loan Group,
(ii2) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in each Loan Group in addition to those delivered on the Closing Date, and
(iii3) within thirty days following the Closing Date, with respect to the remaining Initial Mortgage Loans. The Related Documentation for the Additional Home Equity Loans will be delivered:
(1) no later than relevant Subsequent Closing Date, with respect to no less than 10% of the relevant Additional Home Equity Loans in each Loan Group; and
(2) within twenty days following the relevant Subsequent Closing Date, with respect to the remaining relevant Additional Home Equity Loans in each Loan Group. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Initial Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Initial Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the relevant Subsequent Closing Date or applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Additional Home Equity Loans or Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title title, and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if to provide for the possibility that either transfer were to might be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title title, and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of that the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-H)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.012.01 hereof, the Seller further agrees, at its own expense:
expense on or prior to the Closing Date, (ai) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in cause its books and records to indicate that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, Purchaser pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A and (ii) to deliver to the Sale Purchaser, the Guarantor and the Trustee a computer file containing a true and complete list of all such Mortgage Loans specifying for each such Mortgage Loan, as of the Cut-off Date, (A) its account number and (B) the Cut-off Date Principal Balance. Such file, which forms a part of Exhibit B to the Pooling and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer conveyance by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with the Trustee, as assignee of the Purchaser, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan:
(a) the original Mortgage Note, bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed either (A) in blank, without recourse or (B) in the following form: "Pay to the order of Deutsche Bank National Trust Company, as Trustee for registered Holders of Ameriquest Mortgage Securities Inc., Series 2002-D, without recourse", or with respect to any lost Mortgage Note, an original Lost Note Affidavit; PROVIDED, HOWEVER, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the Purchaser aggregate Cut-off Date Principal Balance of which is less than or equal to 1.00% of the following documents for each Mortgage Loan (Pool Balance as of the "Related Documentation"):Cut-off Date;
(ib) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting thereon, and the presence original recorded power of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan attorney, if the Mortgage Loan is was executed pursuant to a MOM Loan) orpower of attorney, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, thereon or, if any original intervening assignment such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation lost or (ii) when the original intervening assignment has been lostis not otherwise available, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each copy of such Mortgage Loan with a Credit Limit in excess or power of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loansattorney, as the case may be, certified to be clearly a true and unambiguously markedcomplete copy of the original submitted for recording;
(c) an original Assignment, in form and substance acceptable for recording. The Mortgage shall make be assigned either (A) in blank, without recourse, or (B) to "Deutsche Bank National Trust Company, as Trustee for registered Holders of Ameriquest Mortgage Securities Inc., Series 2002-D, without recourse";
(d) an original copy of any intervening Assignment showing a complete chain of Assignments from the applicable originator to the last endorsee with evidence of recording thereon, or the original unrecorded intervening Assignment, in form and substance acceptable for recording;
(e) the original or a certified copy of lender's title insurance policy; and
(f) the original or copies of each assumption, modification, written assurance or substitution agreement, if any. The Seller hereby confirms to the Purchaser and the Trustee that it has caused the appropriate entries to be made in its general accounting records, to indicate that those such Mortgage Loans have been transferred to the Trust at the direction Trustee and constitute part of the Purchaser Trust in accordance with the terms of the Pooling and that they have Servicing Agreement. If any of the documents referred to in Section 2.02(b), (c) or (d) above has as of the Closing Date been Granted submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee or the Custodian no later than the Closing Date of a copy of each such document certified by the Trust Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Seller, delivery to the Indenture TrusteeTrustee or the Custodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and that a purchase complete copy of the Mortgage Loans from original. If the original lender's title insurance policy, or a certified copy thereof, was not delivered pursuant to Section 2.02(e) above, the Seller shall deliver or cause to be delivered to the Trustee or the Purchaser will violate Custodian, the rights original or a copy of a written commitment or interim binder or preliminary report of title issued by the Trusttitle insurance or escrow company, as secured party with the original or a certified copy thereof to be delivered to the Trustee or the Custodian, promptly upon receipt thereof. The Seller shall deliver or cause to be delivered to the Trustee or the Custodian promptly upon receipt thereof any other documents constituting a part of a Mortgage File received with respect to those any Mortgage LoansLoan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement among the Seller, the Master Servicer, the Trustee and the Guarantor, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the original Assignment from the Custodian and (iii) the date on which the Seller receives the related Mortgage recordation information from the applicable recorder's office) submit or cause to be submitted for recording, at no expense to the Purchaser, in the appropriate office for real property records, each Assignment referred to in Sections 2.02(c) and (d) above and shall execute each original Assignment referred to in section 2.02(c) above in the following form: "Deutsche Bank National Trust Company, as Trustee for registered Holders of Ameriquest Mortgage Securities Inc., Series 2002-D, without recourse." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of the Mortgages shall not be required to be completed and submitted for recording with respect to any Mortgage Loan only if the NIMS Insurer, the Guarantor, the Trustee and each Rating Agency has received an Opinion of Counsel, satisfactory in form and substance to the Trustee, the NIMS Insurer and the Guarantor on or before the Closing Date, to the effect that the recordation of such Assignment is not necessary to protect the Purchaser's interest in the related Mortgage Loan; PROVIDED, FURTHER, HOWEVER, notwithstanding the delivery of any Opinion of Counsel, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Purchaser, upon the earliest to occur of: (i) direction by Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master Servicer Event of Termination, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 of the Pooling and Servicing Agreement and (v) if the Seller is not the Master Servicer and with respect to any one Assignment, the occurrence of a bankruptcy of the Mortgagor under the related Mortgage or a foreclosure of the related Mortgage. In the event that any Mortgage Note is endorsed in blank as of the Closing Date, promptly following the Closing Date and in no event later than 45 days after the Closing Date, the Seller shall cause to be completed such endorsements "Pay to the order of Deutsche Bank National Trust Company, as Trustee for registered Holders of Ameriquest Mortgage Securities Inc., Series 2002-D, without recourse." Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Seller shall have 90 days to cure such defect or deliver such missing document to the Purchaser. If the Seller does not cure such defect or deliver such missing document within such time period, the Seller shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03 of the Pooling and Servicing Agreement. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.01. Notwithstanding The parties hereto intend that the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is transaction set forth herein be a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property described above. However, if In the transfer were event the transaction set forth herein is deemed not to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants grants to the Purchaser a Security Interest security interest in all of the Seller's right, title and interest in in, to and under the Mortgage Loans and other property described above, whether now existing now or in the futurehereafter created, to secure all of the Seller's obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asst Back Ps THR Cert Ser 2002 D)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.012.1 hereof, the Seller further agrees, at its own expense:
, on or prior to the Closing Date, (a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by and (b) to deliver to the Closing Date for the Mortgage Loans. The Purchaser a Mortgage Loan Schedule is containing a true and complete list of all such Mortgage Loans specifying for each such Mortgage Loan, among other things, as of the Cut-off Date (i) its account number and (ii) the related Cut-off Date Asset Balance. Such Mortgage Loan Schedule forms a part of Exhibit A C to the Sale Pooling and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect prepare, execute and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing file a UCC-1 Financing Statement financing statement with the Secretary of State in the State of New York California (which shall have been filed on or before the Closing Date with respect to the Mortgage Loans) describing the applicable Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party (and indicating that the Mortgage Loans such loans have been assigned to the Trust Trustee) and all necessary Continuation Statements continuation statements and any additional amendments to the UCC-1 Financing Statements due financing statements required to reflect a change in the name or corporate structure of the state Seller or the filing of incorporation any additional UCC-1 financing statements due to the change in the principal offices of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees , as are necessary to perfect and protect the TrustTrustee's interest in each Mortgage Loan and its the proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assigneethereof. In connection with any transfer conveyance by the Seller, the Seller shall deliver to the order of Depositor, or at the Purchaser Depositor's direction, to the Trustee within 30 days following the Closing Date, the following documents for or instruments with respect to each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Noteblank;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment Assignment of mortgage Mortgage in blank in recordable form;
(iii) the original recorded mortgage Mortgage or, if, in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it thereon cannot be delivered by on or prior to the Closing Date because of a delay caused by the public recording office where the such original Mortgage has been delivered for recordation or because the such original Mortgage has been lost, the Seller Seller, at the direction of the Purchaser, shall deliver or cause to be delivered to the Indenture Trustee an accurate Trustee, a true and correct copy of the mortgagesuch Mortgage, together with (i) when in the case of a delay caused by the public recording office, an Officer's Certificate of the Purchaser stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(iv) if applicable, the original intervening assignments, if any ("Intervening Assignments"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the originator to the Purchaser or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the such original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) when in the case of an original intervening assignment Intervening Assignment that has been lost, a certificate by the appropriate county recording office where the mortgage such Mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, consolidation or substitution agreement agreement, if any, relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, mortgage or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller further hereby confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights as assignee of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage LoansPurchaser. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.2. Notwithstanding the characterization of the Notes Investor Certificates as debt for federalFederal, state, state and local income and franchise tax purposes, the parties hereto intend to treat the transfer of the Mortgage Loans is as provided herein as a sale for accounting and other purposes, by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property described above. However, if In the event such transfer were is deemed not to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants grants to the Purchaser a Security Interest security interest in all of the Seller's right, title and interest in in, to and under the Mortgage Loans and other property described above, whether now existing now or in the futurehereafter created, to secure all of the Seller's obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (Cwabs Inc)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(bc) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements financing statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements financing statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) SystemMERS(R)System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (Cwabs Inc)
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.012.01 hereof, the Seller further agrees, at its own expense:
, on or prior to the Closing Date, (a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser or to the Indenture Trustee, Trustee as assignee of the Purchaser, Purchaser pursuant to this Agreement by and (b) to deliver to the Closing Purchaser (or its designee, the Indenture Trustee) a computer file containing a true and complete list of all such Mortgage Loans specifying, among other things, for each such Mortgage Loan, as of the Cut-Off Date, (1) its account number and (2) the Cut-Off Date for the Mortgage LoansPrincipal Balance. The Mortgage Loan Schedule is Such file, which forms a part of Exhibit A to the Sale and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any such transfer by the Seller, the Seller shall agrees to:
(i) on behalf of the Purchaser, on or before the Closing Date, deliver to and deposit with the order Purchaser (or its designee, the Indenture Trustee), the Mortgage Loan Schedule in computer readable format; and
(ii) on behalf of the Purchaser, deliver to and deposit with the Purchaser (or its designee, the Indenture Trustee) the Mortgage Note in respect of each Mortgage Loan together with the following documents for relating to each such Mortgage Loan (the "“Related Documentation"):Documents”) within 90 days following the Closing Date. The Mortgage Note and the Related Documents shall be in the following form:
(iA) the original Mortgage Note Note, endorsed in blank orblank, if the or a copy of such original Mortgage Note has been lost or destroyed and not replaced, with an accompanying Lost Note Affidavit;
(B) the original lost note affidavit Assignment of Mortgage from the Seller stating that the original Mortgage Note was lostto “Deutsche Bank National Trust Company, misplacedas Indenture Trustee for IndyMac Residential Asset-Backed Trust, or destroyedSeries 2004-LH1”, together with a copy of the related Mortgage Notewhich assignment shall be in form and substance acceptable for recording;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iiiC) the original recorded mortgage Mortgage, with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating thereon, provided, that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because recording to the original Mortgage appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee an accurate a certified true copy of such original Mortgage so certified by the mortgageSeller, together with (i) when the delay is caused by the public recording office, an Officer's Certificate a certificate of the Seller certifying that such original Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or the Purchaser stating that cause to be delivered the original mortgage recorded Mortgage to the Indenture Trustee promptly upon receipt of the original recorded Mortgage;
(D) [reserved];
(E) intervening assignments, if any, with evidence of recording thereon, provided that if such intervening assignment has been dispatched delivered for recording to the appropriate public recording official or (ii) when office of the original mortgage jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee a certified true copy of such intervening assignment so certified by the Seller, together with a certificate by of the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original Seller certifying that such intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public so delivered to such recording office; in all such instances, an Officer's Certificate of the Seller shall deliver or the Purchaser stating that cause to be delivered the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when Indenture Trustee promptly upon receipt of the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loanassignment; and
(viiiF) originals of all assumption and modification agreements, if any, provided, however, that as to any security agreementMortgage Loan, chattel mortgage, or equivalent instrument executed if as evidenced by an Opinion of Counsel delivered to and in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly form and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust substance satisfactory to the Indenture Trustee, the Insurer and that a purchase the Rating Agencies, (x) an optical image or other representation of those the related documents specified in clause (ii)(C) above is enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Loans from the Loan to transfer or perfect its interest in such Mortgage Loan, such optical image or other representation may be delivered as required in clause (ii) above. The Seller or hereby confirms to the Purchaser will violate that it has made the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate clearly and unambiguously that those such Mortgage Loans have been transferred sold to the Purchaser by the Seller, then subsequently sold by the Purchaser to the Trust at the direction and constitute part of the Purchaser and that they have been Granted by Trust in accordance with the Trust to the Indenture Trustee, and that a purchase terms of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage LoansSale and Servicing Agreement. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.01 above. Notwithstanding The Seller acknowledges that the characterization Indenture Trustee is required to review the Mortgage Notes and the Related Documents pursuant to Sections 2.01(d) and (e) of the Notes as debt for federalSale and Servicing Agreement and if the Indenture Trustee finds any document or documents not to have been properly executed, state, and local income and franchise tax purposesor to be missing or to be defective in any material respect, the transfer Indenture Trustee is required to notify the Seller. If the Seller does not within the time period specified in Section 2.02(b) of the Sale and Servicing Agreement correct or cure such omission or document deficiency, the Seller shall either repurchase such relevant Mortgage Loans is Loan directly from the Trust or substitute an Eligible Substitute Mortgage Loan for such Mortgage Loan, in either case, within the time frame and in the manner specified in Section 2.02(b) of the Sale and Servicing Agreement. The parties hereto expressly intend that the transaction set forth herein be a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's ’s right, title and interest in and to the Mortgage Loans and other property described above. It is, further, not the parties’ intent that such conveyance be deemed a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, in the event that, notwithstanding the parties’ intent, the transaction set forth herein is deemed not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller’s right, title and interest in, to and under the Mortgage Loans, whether now existing now or in the futurehereafter created, to secure all of the Seller's ’s obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law, including, without limitation, Articles 8 and 9 of the Uniform Commercial Code in effect in the applicable state. The Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Sale and Servicing Agreement. Without limiting the generality of the foregoing, the Seller hereby agrees to take such actions described in Section 2.01(a) of the Sale and Servicing Agreement as are necessary to complete and file any UCC Financing Statements and any continuation statements required to perfect and protect the Purchaser’s interest in the Mortgage Loans.
Appears in 1 contract
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.01, the Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Indenture Trustee, as assignee of the Purchaser, pursuant to this Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing Agreement and shall also be marked as Schedule I to this Agreement and is hereby incorporated into this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any transfer by the Seller, the Seller shall deliver to the order of the Purchaser the following documents for each Mortgage Loan (the "Related Documentation"):
(i) the original Mortgage Note endorsed in blank or, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iii) the original recorded mortgage with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because the original Mortgage has been lost, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgage, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $[100,000];
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% [50]% of the Mortgage Loans,
(ii) no later than the twentieth [twentieth] day after the Closing Date, with respect to no less than 40% [40]% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty [thirty] days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. The Purchaser accepts all right, title title, and interest of the Seller existing now or in the future in the Mortgage Loans and other property transferred to it pursuant to this Section. Notwithstanding the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of the Mortgage Loans is a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's right, title and interest in the Mortgage Loans and other property described above, whether existing now or in the future, to secure all of the Seller's obligations under this Agreement; and this Agreement shall constitute a Security Agreement under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (CWHEQ, Inc.)
Obligations of Seller Upon Sale. (a) In connection with any the transfer pursuant to Section 2.012.01 hereof, the Seller further agrees, at its own expense:
, on or prior to the Closing Date, (a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser or to the Indenture Trustee, Trustee as assignee of the Purchaser, Purchaser pursuant to this Agreement by and (b) to deliver to the Closing Purchaser (or its designee, the Indenture Trustee) a computer file containing a true and complete list of all such Mortgage Loans specifying, among other things, for each such Mortgage Loan, as of the Cut-off Date, (1) its account number and (2) the Cut-off Date for the Mortgage LoansPrincipal Balance. The Mortgage Loan Schedule is Such file, which forms a part of Exhibit A to the Sale and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party .
(and indicating that the Mortgage Loans have been pledged to the Indenture Trusteeb) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any such transfer by the Seller, the Seller shall agrees to:
(i) on behalf of the Purchaser, on or before the Closing Date, deliver to and deposit with the order Purchaser (or its designee, the Indenture Trustee), the Mortgage Loan Schedule in computer readable format; and
(ii) on behalf of the Purchaser, deliver to and deposit with the Purchaser (or its designee, the Indenture Trustee) the Mortgage Note in respect of each Mortgage Loan together with the following documents for relating to each such Mortgage Loan (the "“Related Documentation"):Documents”) on or before the Closing Date. The Mortgage Note and the Related Documents shall be in the following form:
(iA) the original Mortgage Note Note, endorsed in blank orblank, if the or a copy of such original Mortgage Note has been lost or destroyed and with an accompanying Lost Note Affidavit;
(B) if such Mortgage Loan is not replaceda MERS Mortgage Loan, an the original lost note affidavit Assignment of Mortgage from the Seller stating that the original to “Deutsche Bank National Trust Company, as Indenture Trustee for IndyMac Home Equity Mortgage Note was lostLoan Asset-Backed Trust, misplacedSeries 2006-H2”, or destroyed, together with a copy of the related Mortgage Notewhich assignment shall be in form and substance acceptable for recording;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iiiC) the original recorded mortgage Mortgage, with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating thereon, provided, that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because recording to the original Mortgage appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee an accurate a certified true copy of such original Mortgage so certified by the mortgageSeller, together with (i) when the delay is caused by the public recording office, an Officer's Certificate a certificate of the Seller certifying that such original Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or the Purchaser stating that cause to be delivered the original mortgage recorded Mortgage to the Indenture Trustee promptly upon receipt of the original recorded Mortgage;
(D) intervening assignments, if any, with evidence of recording thereon, provided that if such intervening assignment has been dispatched delivered for recording to the appropriate public recording official or (ii) when office of the original mortgage jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee a certified true copy of such intervening assignment so certified by the Seller, together with a certificate by of the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original Seller certifying that such intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public so delivered to such recording office; in all such instances, an Officer's Certificate of the Seller shall deliver or the Purchaser stating that cause to be delivered the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when Indenture Trustee promptly upon receipt of the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loanassignment; and
(viiiE) originals of all assumption and modification agreements, if any, provided, however, that as to any security agreementMortgage Loan, chattel mortgage, or equivalent instrument executed if as evidenced by an Opinion of Counsel delivered to and in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly form and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust substance satisfactory to the Indenture Trustee, the Insurer and that a purchase the Rating Agencies, (x) an optical image or other representation of those the related documents specified in clauses (ii)(C), (D) and (E) above is enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Loans from the Loan to transfer or perfect its interest in such Mortgage Loan, such optical image or other representation may be delivered as required in clause (ii) above. The Seller or hereby confirms to the Purchaser will violate that it has made the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate clearly and unambiguously that those such Mortgage Loans have been transferred sold to the Purchaser by the Seller, then subsequently sold by the Purchaser to the Trust at the direction and constitute part of the Purchaser and that they have been Granted by Trust in accordance with the Trust to the Indenture Trustee, and that a purchase terms of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage LoansSale and Servicing Agreement. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.01 above. Notwithstanding The Seller acknowledges that the characterization Indenture Trustee is required to review the Mortgage Notes and the Related Documents pursuant to Sections 2.01(e) and (f) of the Notes as debt for federalSale and Servicing Agreement and if the Indenture Trustee finds any document or documents not to have been properly executed, state, and local income and franchise tax purposesor to be missing or to be defective in any material respect, the transfer Indenture Trustee is required to notify the Seller. If the Seller does not within the time period specified in Section 2.02(b) of the Sale and Servicing Agreement correct or cure such omission or document deficiency, the Seller shall either repurchase such relevant Mortgage Loans is Loan directly from the Trust or substitute an Eligible Substitute Mortgage Loan for such Mortgage Loan, in either case, within the time frame and in the manner specified in Section 2.02(b) of the Sale and Servicing Agreement. The parties hereto expressly intend that the transaction set forth herein be a sale by the Seller to the Purchaser of all the Seller's interest in the Mortgage Loans and other property described above. However, if the transfer were to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants to the Purchaser a Security Interest in all of the Seller's ’s right, title and interest in and to the Mortgage Loans and other property described above. It is, further, not the parties’ intent that such conveyance be deemed a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, in the event that, notwithstanding the parties’ intent, the transaction set forth herein is deemed not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller’s right, title and interest in, to and under the Mortgage Loans, whether now existing now or in the futurehereafter created, to secure all of the Seller's ’s obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law, including, without limitation, Articles 8 and 9 of the Uniform Commercial Code in effect in the applicable state. The Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Sale and Servicing Agreement. Without limiting the generality of the foregoing, the Seller hereby agrees to take such actions described in Section 2.01(a) of the Sale and Servicing Agreement as are necessary to complete and file any UCC Financing Statements and any continuation statements required to perfect and protect the Purchaser’s interest in the Mortgage Loans.
Appears in 1 contract
Obligations of Seller Upon Sale. In connection with any transfer pursuant to Section 2.012.1 hereof, the Seller further agrees, at its own expense:
, on or prior to the Closing Date, (a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the related Mortgage Loans have been sold to the Indenture Purchaser or to the Trustee, as assignee of the Purchaser, as applicable, pursuant to this Purchase Agreement by the Closing Date for the Mortgage Loans. The Mortgage Loan Schedule is Exhibit A and (b) to deliver to the Sale Purchaser a computer file containing a true and complete list of all such Mortgage Loans specifying for each such Mortgage Loan, as of the applicable Cut-Off Date, (i) its account number and (ii) the related Cut-Off Date Loan Balance. Such file, which forms a part of Exhibit D to the Pooling and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Purchase Agreement and is hereby incorporated into and made a part of this Purchase Agreement. The Seller agrees to perfect prepare, execute and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a file UCC-1 Financing Statement financing statements with the Secretary of State in the State of New York North Carolina (which shall have been filed on or before the Closing Date with respect to the Mortgage Loans) describing the applicable Mortgage Loans and naming the Seller as debtor and and, with respect to the Mortgage Loans, the Purchaser as secured party (and indicating that the Mortgage Loans such loans have been assigned to the Trust Trustee) as secured party and all necessary Continuation Statements continuation statements and any additional amendments to the UCC-1 Financing Statements due financing statements required to reflect a change in the name or corporate structure of the state Seller or the filing of incorporation any additional UCC-1 financing statements due to the change in the principal office of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees , as are necessary to perfect and protect the TrustTrustee's interest in each Mortgage Loan and its proceeds by preparingLoan, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor payments thereon and the Trust as secured party (and indicating that the Mortgage Loans have been pledged to the Indenture Trustee) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assigneeproceeds thereof. In connection with any transfer conveyance by the Seller, the Seller shall deliver to on behalf, and at the order of direction of, the Purchaser deliver to, and deposit with, the Trustee, as Document Custodian on or before the Closing Date, the following documents for or instruments with respect to each Mortgage Loan (the "Related DocumentationDocuments"):
(i) the original Mortgage Note Note, endorsed "Pay to the order of Norwest Bank Minnesota, National Association, as trustee for the registered holders from time to time of FURSX Xxxtgage Loan Trust 1999-A, Mortgage Pass-Through Certificates, Series 1999-A, without recourse," signed in blank orthe name of the Seller by an authorized officer, if the original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit with all intervening endorsements showing a complete chain of title from the Seller stating that originator of such Mortgage Loan to the original Mortgage Note was lost, misplaced, or destroyed, together with a copy of the related Mortgage NoteSeller;
(ii) unless the original Mortgage, with evidence of recording thereon, provided, that if the original Mortgage Loan has been delivered for recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is registered on located but has not yet been returned to the MERS(R) SystemSeller by such recording office, an the Seller shall cause to be delivered to the Document Custodian a certified true copy of such original assignment Mortgage so certified by the Seller, together with a certificate of mortgage the Seller certifying that such original Mortgage has been so delivered to such recording office; in blank in recordable formall such instances, the Seller shall deliver or cause to be delivered the original recorded Mortgage to the Document Custodian promptly upon receipt of the original recorded Mortgage;
(iii) the original recorded mortgage assignment of Mortgage, from the Seller to "Norwest Bank Minnesota, National Association, as trustee for the registered holders from time to time of FURSX Xxxtgage Loan Trust 1999-A," which assignment shall be in form and substance acceptable for recording;
(iv) the original attorney's opinion of title or the original policy of title insurance, provided, that if any such original policy of title insurance has not yet been received by the Seller, the Seller shall cause to be delivered to the Document Custodian a copy of such policy or a title insurance binder or commitment for the issuance of such policy;
(v) originals of all intervening assignments of Mortgage, with evidence of recording on it (noting thereon, showing a complete chain of title from the presence of the MIN originator of the Mortgage Loan and language indicating to the Seller, provided, that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the any such original recorded mortgage with evidence intervening assignment of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been returned to the Seller by such recording office, the Seller may have delivered to the Document Custodian a certified true copy of such original assignment of Mortgage so certified by the Seller, together with a certificate of the Seller certifying that such original assignment of Mortgage has been lostso delivered to such recording office; in all such instances, the Seller shall deliver or cause to be delivered any such original assignments to the Document Custodian promptly upon receipt thereof; and
(vi) originals of all assumption and modification agreements, if any; provided, however, the Seller may deliver to the Document Custodian all of the above documents other than those referred to in clause (i) above (which shall be delivered on or before the Closing Date) within 60 days after the Closing Date. For all Mortgage Loans that were owned by the Seller on the Cut-Off Date as successor by merger to the originator or previous holder, the Seller shall deliver to the Indenture Trustee an accurate copy of the mortgageTrustee, together with (i) when the delay is caused by the public recording officeas Document Custodian, an Officer's Certificate of the Seller on or the Purchaser stating that the original mortgage has been dispatched to the appropriate public recording official or (ii) when the original mortgage has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public recording office, an Officer's Certificate of the Seller or the Purchaser stating that the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent instrument executed in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than before the Closing Date, with respect an officer's certificate identifying such Mortgage Loans and the identities of the Persons (each, a "Merged Holder") that are reflected on the related Mortgage Notes and Mortgage or assignment of Mortgage as the holder, certifying that the Seller is successor by merger to no less than 50% each such Merged Holder and certifying as to the authority of the officer signing the endorsement referred to in clause (i) above and the assignment of Mortgage referred to in clause (iii) above to execute the same. Such officer's certificate shall constitute part of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% File of the each such Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage LoansLoan. The Seller further hereby confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller Master Servicer to be clearly and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser or the Trustee as assignee of the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee, and that a purchase of those Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate that those Mortgage Loans have been transferred to the Trust at the direction of the Purchaser and that they have been Granted by the Trust to the Indenture Trustee, and that a purchase of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage Loansapplicable. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.1. Notwithstanding The parties hereto intend that (a) the characterization of the Notes as debt for federal, state, and local income and franchise tax purposes, the transfer of transaction set forth herein with respect to the Mortgage Loans is be a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other related property described above. However, if above and (b) in the transfer were event the transaction set forth herein with respect to the Mortgage Loans is deemed not to be characterized as a transfer for security and not as a sale, then the Seller shall be deemed to have granted and does hereby Grants grant to the Purchaser a Security Interest security interest in all of the Seller's right, title and interest in in, to and under the Mortgage Loans and other related property described above, whether now existing now or in the futurehereafter created, to secure all of the Seller's obligations under this Agreement; hereunder, and this Purchase Agreement shall constitute a Security Agreement security agreement under applicable law.
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Samples: Mortgage Loan Purchase Agreement (First Union Residential Securitization Transactions Inc)
Obligations of Seller Upon Sale. (a) In connection with any the transfer pursuant to Section 2.012.01 hereof, the Seller further agrees, at its own expense:
, on or prior to the Closing Date, (a) to deliver to the Purchaser by the Closing Date a Mortgage Loan Schedule containing an accurate list of all Mortgage Loans, specifying for each Mortgage Loan, among other things, its account number and its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser or to the Indenture Trustee, Trustee as assignee of the Purchaser, Purchaser pursuant to this Agreement by and (b) to deliver to the Closing Purchaser (or its designee, the Indenture Trustee) a computer file containing a true and complete list of all such Mortgage Loans specifying, among other things, for each such Mortgage Loan, as of the Cut-off Date, (1) its account number and (2) the Cut-off Date for the Mortgage LoansPrincipal Balance. The Mortgage Loan Schedule is Such file, which forms a part of Exhibit A to the Sale and Servicing Agreement and Agreement, shall also be marked as Schedule I to this Agreement and is hereby incorporated into and made a part of this Agreement. The Seller agrees to perfect and protect the Purchaser's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of New York describing the Mortgage Loans and naming the Seller as debtor and the Purchaser as secured party and indicating that the Mortgage Loans have been assigned to the Trust and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Seller. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. The Purchaser agrees to perfect and protect the Trust's interest in each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1 Financing Statement with the Secretary of State in the State of Delaware describing the Mortgage Loans and naming the Purchaser as debtor and the Trust as secured party .
(and indicating that the Mortgage Loans have been pledged to the Indenture Trusteeb) and all necessary Continuation Statements and any additional UCC-1 Financing Statements due to a change in the name or the state of incorporation of the Purchaser. The Financing Statement shall be filed by the Closing Date. This Financing Statement will state in bold-faced type that a purchase of the Mortgage Loans included in the collateral covered by the Financing Statement from the debtor will violate the rights of the secured party and its assignee. In connection with any such transfer by the Seller, the Seller shall agrees to:
(i) on behalf of the Purchaser, on or before the Closing Date, deliver to and deposit with the order Purchaser (or its designee, the Indenture Trustee), the Mortgage Loan Schedule in computer readable format; and
(ii) on behalf of the Purchaser, deliver to and deposit with the Purchaser (or its designee, the Indenture Trustee) the Mortgage Note in respect of each Mortgage Loan together with the following documents for relating to each such Mortgage Loan (the "Related DocumentationDocuments"):) on or before the Closing Date. The Mortgage Note and the Related Documents shall be in the following form:
(iA) the original Mortgage Note Note, endorsed in blank orblank, if the or a copy of such original Mortgage Note has been lost or destroyed and with an accompanying Lost Note Affidavit;
(B) if such Mortgage Loan is not replaceda MERS Mortgage Loan, an the original lost note affidavit Assignment of Mortgage from the Seller stating that the original to "Deutsche Bank National Trust Company, as Indenture Trustee for IndyMac Home Equity Mortgage Note was lostLoan Asset-Backed Trust, misplacedSeries 2006-H3", or destroyed, together with a copy of the related Mortgage Notewhich assignment shall be in form and substance acceptable for recording;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an original assignment of mortgage in blank in recordable form;
(iiiC) the original recorded mortgage Mortgage, with evidence of recording on it (noting the presence of the MIN of the Mortgage Loan and language indicating thereon, provided, that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan) or, if the original recorded mortgage with evidence of recording on it cannot be delivered by the Closing Date because of a delay caused by the public recording office where the original Mortgage has been delivered for recordation or because recording to the original Mortgage appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee an accurate a certified true copy of such original Mortgage so certified by the mortgageSeller, together with (i) when the delay is caused by the public recording office, an Officer's Certificate a certificate of the Seller certifying that such original Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or the Purchaser stating that cause to be delivered the original mortgage recorded Mortgage to the Indenture Trustee promptly upon receipt of the original recorded Mortgage;
(D) intervening assignments, if any, with evidence of recording thereon, provided that if such intervening assignment has been dispatched delivered for recording to the appropriate public recording official or (ii) when office of the original mortgage jurisdiction in which the Mortgaged Property is located but has not yet been lostreturned to the Seller by such recording office, the Seller shall deliver to the Indenture Trustee a certified true copy of such intervening assignment so certified by the Seller, together with a certificate by of the appropriate county recording office where the mortgage is recorded;
(iv) any original intervening assignments needed for a complete chain of title to the Trust with evidence of recording on them, or, if any original Seller certifying that such intervening assignment has not been returned from the applicable recording office or has been lost, an accurate copy of it, together with (i) when the delay is caused by the public so delivered to such recording office; in all such instances, an Officer's Certificate of the Seller shall deliver or the Purchaser stating that cause to be delivered the original intervening assignment has been dispatched to the appropriate public recording official for recordation or (ii) when Indenture Trustee promptly upon receipt of the original intervening assignment has been lost, a certificate by the appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage Note;
(vii) the original of each assumption, modification, consolidation, or substitution agreement relating to the Mortgage Loanassignment; and
(viiiE) originals of all assumption and modification agreements, if any, provided, however, that as to any security agreementMortgage Loan, chattel mortgage, or equivalent instrument executed if as evidenced by an Opinion of Counsel delivered to and in connection with the Mortgage. The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with respect to no less than 40% of the Mortgage Loans in addition to those delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to the remaining Mortgage Loans. The Seller confirms to the Purchaser that, as of the Closing Date, it has caused the portions of the Electronic Ledger relating to the Mortgage Loans maintained by the Seller to be clearly form and unambiguously marked to indicate that the Mortgage Loans have been sold to the Purchaser, and sold by the Purchaser to the Trust, and Granted by the Trust substance satisfactory to the Indenture Trustee, the Insurer and that a purchase the Rating Agencies, (x) an optical image or other representation of those the related documents specified in clauses (ii)(C), (D) and (E) above is enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Loans from the Loan to transfer or perfect its interest in such Mortgage Loan, such optical image or other representation may be delivered as required in clause (ii) above. The Seller or hereby confirms to the Purchaser will violate that it has made the rights of the Trust, as secured party with respect to those Mortgage Loans. By the applicable date of substitution, the Seller shall cause the portions of the Electronic Ledgers relating to the relevant Eligible Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously marked, and shall make appropriate entries in its general accounting records, to indicate clearly and unambiguously that those such Mortgage Loans have been transferred sold to the Purchaser by the Seller, then subsequently sold by the Purchaser to the Trust at the direction and constitute part of the Purchaser and that they have been Granted by Trust in accordance with the Trust to the Indenture Trustee, and that a purchase terms of the Mortgage Loans from the Seller or the Purchaser will violate the rights of the Trust, as secured party with respect to those Mortgage LoansSale and Servicing Agreement. The Purchaser accepts hereby acknowledges its acceptance of all right, title and interest of the Seller existing now or in the future in to the Mortgage Loans and other property transferred property, now existing and hereafter created, conveyed to it pursuant to this SectionSection 2.01 above. Notwithstanding The Seller acknowledges that the characterization Indenture Trustee is required to review the Mortgage Notes and the Related Documents pursuant to Sections 2.01(e) and (f) of the Notes as debt for federalSale and Servicing Agreement and if the Indenture Trustee finds any document or documents not to have been properly executed, state, and local income and franchise tax purposesor to be missing or to be defective in any material respect, the transfer Indenture Trustee is required to notify the Seller. If the Seller does not within the time period specified in Section 2.02(b) of the Sale and Servicing Agreement correct or cure such omission or document deficiency, the Seller shall either repurchase such relevant Mortgage Loans is Loan directly from the Trust or substitute an Eligible Substitute Mortgage Loan for such Mortgage Loan, in either case, within the time frame and in the manner specified in Section 2.02(b) of the Sale and Servicing Agreement. The parties hereto expressly intend that the transaction set forth herein be a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property described above. It is, further, not the parties' intent that such conveyance be deemed a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, if in the transfer were event that, notwithstanding the parties' intent, the transaction set forth herein is deemed not to be characterized as a transfer for security and not as a sale, then the Seller hereby Grants grants to the Purchaser a Security Interest security interest in all of the Seller's right, title and interest in in, to and under the Mortgage Loans and other property described aboveLoans, whether now existing now or in the futurehereafter created, to secure all of the Seller's obligations under this Agreementhereunder; and this Agreement shall constitute a Security Agreement security agreement under applicable law, including, without limitation, Articles 8 and 9 of the Uniform Commercial Code in effect in the applicable state. The Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Sale and Servicing Agreement. Without limiting the generality of the foregoing, the Seller hereby agrees to take such actions described in Section 2.01(a) of the Sale and Servicing Agreement as are necessary to complete and file any UCC Financing Statements and any continuation statements required to perfect and protect the Purchaser's interest in the Mortgage Loans.
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