PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, ownership of the Purchased Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction. (b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents: (A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note), (B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller, (C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller, (D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office), (E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office), (F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document, (G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified, (H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy, (I) a copy of any ground lease and any ground lessor estoppels, (J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement, (K) an original of any guaranty of payment under such Mortgage Loan, (L) an original of any environmental indemnity, (M) an original copy of any escrow agreements, (N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office, (O) UCC-3 assignment financing statements from the applicable Seller in blank, (P) an original of any subordination agreement or intercreditor agreement, (Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and
Appears in 2 contracts
Samples: Master Repurchase Agreement (Sutherland Asset Management Corp), Master Repurchase Agreement (Sutherland Asset Management Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, (i) ownership of the Purchased Loans Asset shall be transferred to Buyer or its designee (including the any Custodian) against the simultaneous transfer payment of the Purchase Price in immediately available funds to an account of the applicable SellerSeller or an Acceptable Attorney pursuant to an escrow letter or other undertaking approved by Buyer, in its sole discretion specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus and (ii) any Seller hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable assigns to Buyer pursuant on a servicing-released basis all of Seller’s right, title and interest in and to Section 27 or Section 30(d) in connection such Purchased Asset, together with such Transactionall related Servicing Rights. Subject to this Agreement, Seller may sell to Buyer, repurchase from Buyer and re-sell Eligible Assets to Buyer, but may not substitute other Eligible Assets for Purchased Assets.
(b) On or before such Seller shall:
(i) with respect to each Purchased Asset that is not a Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) on the Business Day prior to the related Purchase Date, deliver and release to Custodian (with a copy to Buyer), the applicable Purchased Asset Documents together with any other documentation in respect of such Purchased Asset requested by Buyer, in Buyer’s sole discretion, and (B) on the Purchase Date, cause Custodian to deliver a Trust Receipt confirming receipt of such Purchased Asset Documents; and
(ii) with respect to each Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) on the Purchase Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the related Mortgage Note with assignment in blank, loan agreement, Mortgage, Title Policy and executed Bailee Agreement, (B) not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the Purchase Date, deliver or cause Bailee to deliver and release to Custodian (with a copy to Buyer), the Purchased Asset Documents and any other documentation in respect of such Purchased Asset requested by Buyer, in its sole discretion, (C) not later than two (2) Business Days following receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt, and (D) on or prior to the Purchase Date, pay to Buyer the Table Funding Fee; provided that if Seller shall deliver cannot deliver, or cause to be delivered, any of the original Purchased Asset Documents required to be delivered as originals (excluding the Mortgage Note and the Assignment of Mortgage, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and an officer’s certificate of Seller certifying that such copy represents a true and correct copy of the original and shall use its best efforts to obtain and deliver such original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using its best efforts to obtain the original). After the expiration of such best efforts period, Seller shall deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document, and thereafter Seller shall have no further obligation to deliver the related original document.
(c) From time to time, Seller shall forward to Buyer and to Custodian additional copies of, originals of, documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents in accordance with the Custodial Agreement. With respect to all of the Purchased Assets delivered by Seller to Buyer, its designee (including Custodian), or the Acceptable Attorney, as the case may be, Seller shall have executed and delivered to Buyer the omnibus power of attorney substantially in the form of Exhibit IV attached hereto irrevocably appointing Buyer its attorney in fact with full power, if an Event of Default has occurred and is continuing, to (i) complete the endorsements of the Purchased Assets, including without limitation the Mortgage Notes, Assignments of Mortgages, and any transfer documents related thereto, (ii) record the Assignments of Mortgages, (iii) prepare and file and record each assignment of mortgage, (iv) take any action (including exercising voting and/or consent rights) with respect to intercreditor agreements, co-lender agreements, recognition agreements or participation agreements, (v) complete the preparation and filing, in form and substance satisfactory to Buyer, of such financing statements, continuation statements, and other UCC forms, as Buyer may from time to time, reasonably consider necessary to create, perfect, and preserve Buyer’s security interest in the Purchased Assets, (vi) enforce Seller’s rights under the Purchased Assets purchased by Buyer pursuant to this Agreement and to, and (vii) take such other steps as may be necessary or desirable to enforce Buyer’s rights against, under or with respect to such Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or direct that the Purchased Asset Files be deposited directly, with Custodian, and the Purchased Asset Files shall be maintained in accordance with the Custodial Agreement. If a Purchased Asset File is not delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale(including Custodian), transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller Asset File shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of the Purchased Asset File only in accordance with an original or (written instructions from Buyer, unless such release is required as incidental to the extent that such original servicing of the Purchased Assets, is retained by the relevant public recording office) in connection with a copy repurchase of any intervening assignments of Purchased Asset by Seller or as otherwise required by law or set forth in the Mortgage showing Custodial Agreement.
(d) Buyer hereby grants to Seller a complete chain of assignment from the originator of such Mortgage Loan revocable option to direct Buyer with respect to the applicable Seller,
(C) the original or (exercise of all voting and corporate rights with respect to the extent that such original is retained by the relevant public recording office) Purchased Assets (each, a copy of any Assignment of Leases (if such item is a document separate from the Mortgage“Revocable Option”) and of to vote, take corporate actions and exercise any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued rights in connection with the origination Purchased Assets, so long as no monetary Default, material non-monetary Default, or Event of such Mortgage Loan, together with its endorsements or, if such policy Default has occurred and is continuing. Such Revocable Option is not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy evidence of any ground lease ownership or other interest or right of Seller in any Purchased Asset. Upon the occurrence and any ground lessor estoppels,
(J) if such Mortgage Loan contains during the continuation of a Future Advance Obligationmonetary Default, material non-monetary Default, or an original Event of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller Default, and UCC-3 assignment financing statements in favor of the applicable Seller, in each case subject to the provisions of the Purchased Asset Documents, the Revocable Option discussed above shall terminate following written notice from Buyer to Seller and thereafter Buyer shall be entitled to exercise all voting and corporate rights with respect to the Purchased Assets without regard to Seller’s instructions (unless including, but not limited to, if an Act of Insolvency shall occur with respect to Seller, to the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon extent Seller controls or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original is entitled to control selection of any subordination agreement servicer, Buyer may transfer any or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original all of such power of attorney or other instrument, andservicing to an entity satisfactory to Buyer).
Appears in 2 contracts
Samples: Master Repurchase Agreement (Terra Property Trust, Inc.), Master Repurchase Agreement (Terra Secured Income Fund 5, LLC)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a Power of the difference between (i) the Purchase Price for the Attorney to Seller, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Assets. Provided that no Event of Default shall have occurred and all feesbe continuing, costs such Power of Attorney to Seller shall be binding upon Buyer and expenses including, without limitation, reasonable attorneys’ fees Buyer’s successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such Seller shall:
(i) with respect to each Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) on the Purchase Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the applicable related (1) Mortgage Note, Mezzanine Note or Participation Certificate with assignment in blank (as applicable), (2) loan agreement, (3) Mortgage or Mezzanine Pledge Agreement and LLC Certificate (as applicable), (4) Title Policy, (5) Insured Closing Letter and Escrow Instructions, if any, and (6) the executed Bailee Agreement; (B) not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the Purchase Date, deliver or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with a Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (C) not later than two (2) Business Days following receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt; and
(ii) with respect to each Purchased Asset that is not a Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) two (2) Business Days prior to the related Purchase Date, deliver and release to Custodian (with a copy to Buyer), together with the Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Table Funded Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (B) on the Purchase Date, cause Custodian to deliver a Trust Receipt confirming receipt of such Purchased Asset Documents; provided that if Seller shall deliver cannot deliver, or cause to be delivered, any of the original Purchased Asset Documents required to be delivered as originals (excluding the Mortgage Note, Mezzanine Note, the Assignment of Mortgage, the LLC Certificate and the Participation Certificate, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original and shall use its best efforts to obtain and deliver such original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using its best efforts to obtain the original). After the expiration of such best efforts period, Seller shall deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document, and thereafter Seller shall have no further obligation to deliver the related original document. Notwithstanding the foregoing, Buyer shall, at its option, have the right to cancel the purchase of an Eligible Asset if all required originals have not been delivered as required in this Agreement.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (including Custodian), Seller shall execute an omnibus Power of Attorney to Buyer irrevocably appointing Buyer its attorney-in-fact with full power to, during the continuance of an Event of Default only, (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note, Mezzanine Note, LLC Certificate or Participation Certificate (as applicable) and (iii) take such other steps as may be necessary or desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the (including Custodian, ) is and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified be held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the extent that such original is retained by the relevant public recording office) a copy terms and conditions of any intervening assignments this Agreement, of the Mortgage showing a complete chain related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of assignment the Purchased Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy of any ground lease Buyer in form and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andsubstance:
Appears in 2 contracts
Samples: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.), Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the following Agent’s account: The Bank of New York Mellon 0000 Xxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx 00000 ABA: [***] Attention: Daizon Camp Phone: [Redacted pursuant to Item 601(a)(6) of Reg. S-K] Account Number: [***] For Credit To: GMC not later than 1:00 p.m. (New York City time) - 2:00 p.m. if electronically submitted on the date when such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Sellers acknowledge that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) Agent for the benefit of the Buyers against the simultaneous transfer of the Purchase Price therefore from the Buyers to an the Settlement Account and the Agent’s transfer of the Purchase Price from the Settlement Account to the following account of the applicable SellerSellers (the “Operating Account”): Account No. [***], specified in for the Confirmation account of the Sellers, The Bank of New York Mellon, ABA No. [***], Attn: Xxxxx Xxxxxxx, simultaneously with the delivery to the Agent for the benefit of the Buyers of the Purchased Assets relating to such Transaction each Transaction. With respect to the Purchased Assets being sold by Seller on a Purchase Date, Seller hereby sells, transfers, conveys and assigns to the Agent for the benefit of the difference between (i) Buyers without recourse, but subject to the Purchase Price for terms of this Repurchase Agreement, all the right, title and interest of Seller in and to the Purchased Loan(sAssets (on a servicing released basis) minus together with all right, title and interest of Seller in and to any appurtenant Repurchase Assets and the proceeds thereof. On each Repurchase Date, the repurchase of Purchased Assets and the termination of the applicable Transaction will be governed by Section 4(d).
(iic) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in In connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in Asset Files for all Purchased Assets. The Custodian shall act as the Custodial Delivery delivered therewith; provided, that agent for the applicable Seller shall deliver a certificate Agent to effect the delivery of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (Purchased Assets transferred to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in Sellers on each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same Repurchase Date pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing officeSection 4(d), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Guild Holdings Co), Master Repurchase Agreement (Guild Holdings Co)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a Power of the difference between (i) the Purchase Price for the Attorney to Seller, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Assets. Provided that no Event of Default shall have occurred and all feesbe continuing, costs such Power of Attorney to Seller shall be binding upon Buyer and expenses including, without limitation, reasonable attorneys’ fees Buyer’s successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such Seller shall:
(i) with respect to each Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) on the Purchase Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the applicable related Mortgage Note or Participation Certificate with assignment in blank (as applicable), loan agreement, Mortgage, Title Policy, Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement; (B) not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the Purchase Date, deliver or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with a Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (C) not later than two (2) Business Days following receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt; and
(ii) with respect to each Purchased Asset that is not a Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) two (2) Business Days prior to the related Purchase Date, deliver and release to Custodian (with a copy to Buyer), together with the Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Table Funded Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (B) on the Purchase Date, cause Custodian to deliver a Trust Receipt confirming receipt of such Purchased Asset Documents; provided that if Seller shall deliver cannot deliver, or cause to be delivered, any of the original Purchased Asset Documents required to be delivered as originals (excluding the Mortgage Note, the Mezzanine Note, the Assignment of Mortgage and, if applicable, the Participation Certificate, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original and shall use its best efforts to obtain and deliver such original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using its best efforts to obtain the original). After the expiration of such best efforts period, Seller shall deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document, and thereafter Seller shall have no further obligation to deliver the related original document. Notwithstanding the foregoing, Buyer shall, at its option, have the right to cancel the purchase of an Eligible Asset if all required originals have not been delivered as required in this Agreement.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (including Custodian), Seller shall execute an omnibus Power of Attorney to Buyer irrevocably appointing Buyer its attorney-in-fact with full power to (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note, Mezzanine Note or Participation Certificate (as applicable) and (iii) after the occurrence and during the continuance of an Event of Default, take such other steps as may be necessary or desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the (including Custodian, ) is and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified be held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the extent that such original is retained by the relevant public recording office) a copy terms and conditions of any intervening assignments this Agreement, of the Mortgage showing a complete chain related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of assignment the Purchased Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy of any ground lease Buyer in form and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andsubstance:
Appears in 2 contracts
Samples: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.), Master Repurchase and Securities Contract Agreement (Granite Point Mortgage Trust Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, designated by Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a power of attorney, substantially in the difference between form attached as Exhibit IV-2 hereto, allowing Seller to administer, operate and service such Purchased Loans at all times prior to the occurrence and continuance of an Event of Default. Provided that no Event of Default shall have occurred and be continuing, the power of attorney (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitationsubject to the terms of this Agreement, reasonable attorneys’ fees the exercise of any voting rights or similar rights by Seller) shall be binding upon Buyer and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such TransactionBuyer’s successors and assigns.
(b) On or before such With respect to each Table Funded Purchased Loan, Seller shall cause the Bailee to deliver to the Buyer by no later than 1:00 p.m. (New York time), on the Purchase Date, by facsimile or electronic mail a true and complete copy of the related Note, the insured closing letter, if any, and escrow instructions, if any, and the executed Bailee Agreement. In connection with the sale of each Purchased Loan, not later than 1:00 p.m. (New York time), one (1) Business Days prior to the related Purchase Date (or with respect to a Table Funded Purchased Loan not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the applicable Purchase Date), Seller shall deliver or cause Bailee to be delivered deliver (with a copy to Buyer or its designee Buyer) and release to the Custodian (together with the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianCertificate ), and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning (or in the case of a Table Funded Purchased Loan, not later than two (2) Business Days following the receipt of, by the Custodian) confirming the receipt of the following documents original (or where indicated, copied) documents, to the extent applicable (collectively, the “Purchased Loan File”) ), pertaining to each of the Purchased Loans identified in the Custodial Delivery Certificate delivered therewith; provided:
(i) With respect to each Purchased Loan, the following documents, as applicable and subject to clauses (ii) and (iii) below:
(A) The original Note bearing all intervening endorsements, endorsed “Pay to the order of without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized Person of the Last Endorsee (in the event that the Purchased Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Loan was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”) or a lost note affidavit in a form reasonably approved by Buyer, with a copy of the applicable Seller shall deliver a certificate Note attached thereto.
(B) The original or copy of the loan agreement and guaranty, if any, executed in connection with the Purchased Loan.
(C) The original equity interests certificate(s) held as collateral for the Purchased Loan, together with an Authorized Representative original endorsement to such certificate(s) in blank.
(D) The originals or copies of such all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or copies thereof together with an Officer’s Certificate of Seller certifying that any such copies of documents delivered represent true and correct copies of the originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of such documents:the jurisdiction where the Property is located.
(AE) A copy or the original of any guarantor security agreement or equivalent document executed Mortgage Note together in connection with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank the Purchased Loan.
(F) A copy of the UCC financing statements and otherwise showing a complete, unbroken chain all necessary UCC continuation statements with evidence of endorsement from the initial lender (filing thereon or, if unrecorded, copies thereof together with evidence that such UCC financing or continuation statements have been sent for filing, and UCC assignments in blank, which UCC assignments shall be in form and substance acceptable for filing in the applicable jurisdictions.
(G) A copy or the original Mortgage Note has been lostof any environmental indemnity agreement or similar guaranty or indemnity, an affidavit whether stand-alone or incorporated into the applicable loan documents (if any).
(H) The original omnibus assignment in blank or such other documents necessary and sufficient to transfer to Buyer all of Seller’s right, title and interest in and to the Purchased Loan (if any).
(I) A copy of the Survey of the Property (if any) as accepted by the title company for issuance of the Title Policy.
(J) A copy of all servicing agreements and Servicing Records related to such effect from the applicable Purchased Loan, which Seller or another prior holder and shall deliver to Servicer (with a customary indemnity from the applicable Seller in favor copy to Buyer).
(K) A copy of the Buyer for any costs, losses Underlying Obligor’s opinions of counsel.
(L) A copy or damages arising from the failure to deliver the original Mortgage Noteof any assignment of any management agreements, permits, contracts and other material agreements (if any).
(M) Reports of UCC, Tax lien, judgment and litigation searches obtained by Seller, conducted by search firms reasonably acceptable to Buyer with respect to the Purchased Loan, Seller and the related underlying obligor.
(N) The original or a copy of the intercreditor or co-lender agreement (if any) executed in connection with the Purchased Loan to the extent the subject borrower, or an affiliate thereof, has encumbered its assets with senior, junior or similar financing, whether mortgage financing or mezzanine loan financing.
(O) Copies of all documents relating to the formation and organization of the related obligor under such Purchased Loan, together with a copy of all consents and resolutions delivered in connection with such Mortgage Note),obligor’s obtaining such Purchased Loan.
(BP) the original or With respect to each Property subject to a Purchased Loan: (to the extent that such original is retained by the relevant public recording officei) a copy of the Mortgagedeed evidencing ownership of such Property by the Property Owner, together with an original or (to the extent that in Seller’s possession, (ii) evidence of property and business liability insurance for such original is retained by Property, (iii) a copy of the relevant public recording officeTitle Policy, (iv) an Appraisal of such Property and (v) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of lease or other occupancy agreement with respect to such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,Property.
(Q) if the Mortgage Note All other material documents and instruments evidencing, guaranteeing, insuring, securing or Mortgage was modifying such Purchased Loan, executed and delivered in connection with, or otherwise relating to, such Purchased Loan, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property.
(ii) If Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under the provisions above, Seller shall deliver a photocopy thereof and, unless waived by Buyer, an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original. Seller shall then, (1) use commercially reasonable efforts to obtain and deliver the original document within 180 days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole good faith discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using commercially reasonable to obtain the original), (2) after the expiration of such best efforts period, deliver to Buyer a certification that states, despite Seller’s commercially reasonable efforts, Seller was unable to obtain such original document and (3) thereafter have no further obligation to deliver the related original document.
(c) From time to time, Seller shall forward to the Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, the Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to the Custodian promptly when they are received. With respect to all of the Purchased Loans delivered by Seller to Buyer or its designee (including the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit IV-1 attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to (i) complete the endorsement of any Note and (ii) take such other steps as may be reasonably necessary or other instrument that authorized or empowered such person desirable to signenforce Buyer’s rights against any Purchased Loans and the related Purchased Loan Files and the Servicing Records, an original of such which power of attorney Buyer agrees will only be exercised during the continuance of an Event of Default. Buyer shall deposit the Purchased Loan Files representing the Purchased Loans, or other instrumentcause the Purchased Loan Files to be deposited directly, andwith the Custodian to be held by the Custodian on behalf of Buyer. The Purchased Loan Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Loan File not delivered to Buyer or its designee (including the Custodian) is and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Purchased Loan File and the originals of the Purchased Loan File not delivered to Buyer or its designee. The possession of the Purchased Loan File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Loan, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the terms and conditions of this Agreement, of the related Purchased Loan to Buyer. Seller or its designee (including the Custodian) shall release its custody of the Purchased Loan File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Loans, is in connection with a Loan that was delivered to Custodian by Seller but was not purchased by Buyer pursuant to this Agreement or is in connection with a repurchase of any Purchased Loan by Seller or is pursuant to the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the following items and documents, each of which shall be satisfactory to Buyer in form and substance:
Appears in 2 contracts
Samples: Master Repurchase Agreement, Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans and all other Repurchase Assets shall be transferred by the applicable Seller to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of designated by the applicable Seller, Seller specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase DateIn connection with the sale of each Purchased Loan, the in accordance with Section 3(c):
(i) The applicable Seller shall deliver (with an electronic copy to Buyer) and release to Custodian the following original (or cause where indicated, copied) documents, to be delivered the extent applicable and subject to Buyer or its designee clause (iv) below (collectively, the “Purchased Loan File”), together with a Custodial Delivery in the form attached hereto as Exhibit IV. In connection Certificate provided to Custodian (with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior an electronic copy to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianBuyer), and shall cause the Custodian to deliver a Trust Receipt Receipt, inventory report and Exception Report to Buyer on the Purchase Date concerning confirming the receipt of, the following documents (collectively, the “of such Purchased Loan File”) Documents pertaining to each of the Purchased Loans identified in the Custodial Delivery Certificate delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable ridersNote, bearing all intervening endorsements, endorsed on its face or by allonge attached theretoan Authorized Representative of the originator “pay to the order of, without recourse” to blank, in blank and otherwise showing a complete, unbroken chain of endorsement from or if the initial lender (or, if such original Mortgage Note has been lostlost or destroyed, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),Note together with a lost note affidavit;
(B) the original or a copy of any guarantee of which the Custodian has been specifically notified (to as identified in the extent that such Mortgage Loan Schedule accompanying delivery of the related Mortgage Loan File) in connection with the Mortgage Note (if any);
(C) (A) the original is retained by the relevant public recording office) Mortgage or a copy of the Mortgage, together Mortgage with an original or evidence of recording thereon; and (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(CB) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment the recorded power of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available attorney, if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney with evidence of recording thereon, if recordation is required;
(D) originals, or other instrument copies of any intervening Assignments of Mortgage with evidence of recording thereon; provided that authorized if any such Assignment of Mortgage is in the process of recordation, such Assignment of Mortgage may be evidenced by a certified copy;
(E) the originals or empowered such person to signcopies of all assumption, modification, consolidation or extension agreements of which the Custodian has been specifically notified (as identified in the Mortgage Loan Schedule accompanying delivery of the related Mortgage Loan File) , with evidence of recording thereon if noted as required on the Mortgage Loan Schedule;
(F) (A) for each Mortgage Loan that is not registered with the Mortgage Electronic Registration System, Inc. (“MERS”) an original Assignment of the Mortgage prepared in blank, which, in each case, shall be in form and substance acceptable for recording, and (B) in the case of each Mortgage Loan registered with MERS, the original Mortgage or copy thereof as provided in (iii) above, noting the presence of the Mortgage Identification Number (the “MIN”) and including either language indicating that the Mortgage Loan is a Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for the originator of such power loan and its successors and assigns (a “MOM Loan”) or if the Mortgage Loan was not a MOM Loan at origination, the assignment thereof to MERS, together with (x) an assignment of attorney such Mortgage Loan registered with MERS from MERS to the originator and (y) the original assignment of such Mortgage Loan registered with MERS from the originator in blank; and
(G) the original or a copy of the Title Policy or attorney’s opinion of title and abstract of title, together with all endorsements or riders that were issued with or subsequent to the issuance of such policy (if any), insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the mortgagor.
(ii) The applicable Seller shall deliver the original executed Mortgage Note bearing all intervening endorsements, the original or copy of the loan agreement, the original mortgage and any intervening assignments of mortgage with evidence of recording thereon (or a certified true copy of a mortgage or assignment out for recording) and the original Title Policy (as required by clause (b)(i)(A), (C), (D) and (G) of this Section 7) for each Purchased Loan by no later than the related Purchase Date. If such Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under clauses (b)(i)(C), (D), (E), (G), (H) and (I) of this Section 7, such Seller shall deliver a true and correct photocopy thereof. Such Seller shall use commercially reasonable efforts to obtain and deliver the original document within thirty (30) days (or, if such original document has been submitted for recordation in the appropriate governmental recording office but not yet returned, one hundred eighty (180) days) after the related Purchase Date. After the expiration of the applicable period specified above, Repo Agent may, in its sole and absolute discretion, reduce the Asset Value for such Purchased Loan to $0.00.
(c) From time to time, the applicable Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any such other instrumentdocuments, andCustodian shall hold such other documents on behalf of Buyer pursuant to the Custodial Agreement. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to the applicable Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, such Seller shall deliver to Custodian a true, correct and complete copy of the original, which has been transmitted for recordation. The applicable Seller shall deliver such original documents to Custodian promptly when they are received. All Purchased Loan Files shall be deposited directly with Custodian to be held by Custodian on behalf of Buyer. The Purchased Loan Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Loan File not delivered to Custodian is and shall be held in trust by the applicable Seller or its designee for the benefit of Buyer as the owner thereof. The applicable Seller or its designee shall maintain a copy of the Purchased Loan File and the originals of the Purchased Loan File not delivered to Custodian. The possession of the Purchased Loan File by the applicable Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Loan, and such retention and possession by the applicable Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of the applicable Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the terms and conditions of this Agreement, of the related Purchased Loan to Buyer. The applicable Seller or its designee (including Custodian) shall release its custody of the Purchased Loan File only in accordance with written instructions from Repo Agent, unless such release is required as incidental to the servicing of the Purchased Loans, is in connection with a Mortgage Loan that was delivered to Custodian by such Seller but was not purchased by Buyer pursuant to this Agreement or is in connection with a repurchase of any Purchased Loan by such Seller or is pursuant to the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Sellers shall have caused Buyer or Repo Agent to have received all of the following items and documents, each of which shall be required to be satisfactory to Repo Agent in form and substance:
Appears in 2 contracts
Samples: Master Repurchase Agreement (Angel Oak Mortgage, Inc.), Master Repurchase Agreement (Angel Oak Mortgage, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: MLMCI, Account No. 00000000, for the account of MLMCI Matchbook, Bankers Trust, N.Y., ABA# 021 001 033, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable Seller (or as otherwise directed by the Seller): Account No. 000-0-000000, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the account of Taberna Realty Holdings Trust; The Bancorp, ABA No. 000-000-000, Attn: Xxx Xxxxx. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
Samples: Master Repurchase Agreement (Taberna Realty Finance Trust)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan which is not a Wet Ink Mortgage Loan (or with respect to item (vii) below within seven Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements (or allonges), endorsed on its face or by allonge attached thereto"Pay to the order of ________, without recourse" and signed in the name of the last endorsee (the "Last Endorsee") by an authorized officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in blank and otherwise showing a completethe following form: "[the Last Endorsee], unbroken chain successor by merger to [name of endorsement from predecessor]"; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(or, if such ii) the original of any guarantee executed in connection with the Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is or a recordable document,copy certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, the commitment or binder to issue the same; and
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any).
(e) In connection with each sale, transfer, conveyance and assignment, on or prior to the seventh Business Day following each Purchase Date with respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, Seller shall deliver or cause to be delivered to the Custodian a complete Mortgage File. On the date on which the Buyer receives a Trust Receipt from the Custodian certifying that a complete Mortgage File with respect to a Wet Ink Mortgage Loan is in the possession of the Custodian, such Wet Ink Mortgage Loan be deemed a standard Mortgage Loan (and no longer a Wet Ink Mortgage Loan) for all purposes hereunder, including, without limitation, determination of the Pricing Spread and compliance with subsection (zz) of Exhibit V.
(f) With respect to each Mortgage Loan delivered by Seller to Buyer or its designee (including the Custodian), Seller shall have executed an irrevocableomnibus power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, binding commitment (which complete the endorsement of the Mortgage Note and take such other steps as may be an agreement necessary or desirable to provide enforce Buyer's rights against such Mortgage Loans, the same pursuant to binding escrow instructions executed by an authorized representative of related Mortgage Files and the title company) to issue such title insurance policy,Servicing Records.
(Ig) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,
Purchased Mortgage Loan to Buyer. Seller or its designee (Kincluding the Custodian) an original shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Purchased Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) Dollars in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery Form and the Custodial Delivery.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller specified in the form attached hereto as Exhibit IVConfirmation. The applicable Seller, simultaneously with the delivery to Buyer or its designee (including Custodian) of the Purchased Mortgage Loans relating to each Transaction, hereby sells, transfers, conveys and assigns to Buyer or its designee (including Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of such Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased each Mortgage Loan that is not a Wet Ink Mortgage Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery Form delivered therewith; provided:
(i) the original Mortgage Note bearing all intervening endorsements (or allonges), endorsed "Pay to the order of , without recourse" and signed in the name of the last endorsee (the "Last Endorsee") by an authorized officer (in the event that the applicable Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(ii) the original of any guarantee executed in connection with the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon or a copy certified by such Seller, its agent or the title company on behalf of Seller shall deliver a certificate that have been sent for recording;
(iv) the originals of an Authorized Representative all assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by such Seller, its agent or the title company on behalf of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:to have been sent for recording, if any;
(Av) the original executed assignment of Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender for each Mortgage Loan (or, if such original Mortgage Note has been lostLoan is and will be registered on the MERS® System, an affidavit to showing MERS as the assignee of such effect from Mortgage, unless such Mortgage Loan is a MOM Loan, in which case no assignment of Mortgage shall be required), in form and substance acceptable for recording and signed in the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor name of the Buyer for any costslast endorsee thereof (in the event that the Mortgage Loan was acquired by the last endorsee in a merger, losses the signature must be in the following form: "[the last endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or damages arising from originated while doing business under another name, the failure to deliver signature must be in the original Mortgage Notefollowing form: "[the last endorsee], together with a copy of such Mortgage Noteformerly known as [previous name]"),;
(Bvi) the original or (to the extent that such original is retained by the relevant public recording office) a copy originals of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any all intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) mortgage with evidence of recording indicated thereon or copies certified by such Seller to have been sent for recording, if the instrument being modified is a recordable document,any;
(Gvii) originals the original of all modification agreements any security agreement, chattel mortgage or equivalent document executed in those instances in which the terms or provisions of connection with the Mortgage Note have been modified,(if any);
(Hviii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, an irrevocable, binding the commitment or binder to issue the same (which may be an agreement marked by the title insurance company) and a certified copy of mortgage insurance, if applicable; and
(ix) the original power of attorney, if any, or a copy thereof certified by such Seller to provide have been sent for recording, for any document described above.
(e) In connection with each sale, transfer, conveyance and assignment, with respect to each Mortgage Loan that is a Wet Ink Mortgage Loan, (x) on each Purchase Date, the same pursuant applicable Seller shall cause the related form of Custodial Delivery with all required documentation for each funded Mortgage Loan to binding escrow instructions executed by an authorized representative be delivered to Custodian and (y) on or prior to 4:00 p.m. (New York City time) on the seventh (7th) Business Day following each Purchase Date, such Seller shall deliver or cause to be delivered to Custodian all of the title companydocuments required to be contained in the Mortgage File. On the date on which Buyer receives a Trust Receipt from Custodian certifying that all of the documents required to be contained in Mortgage File with respect to a Wet Ink Mortgage Loan are in the possession of Custodian, such Wet Ink Mortgage Loan be deemed a Dry Ink Mortgage Loan (and no longer a Wet Ink Mortgage Loan) to issue such title insurance policy,for all purposes hereunder, including determination of the Pricing Spread.
(If) With respect to each Mortgage Loan delivered by the applicable Seller to Buyer or its designee (including Custodian), such Seller shall have executed an omnibus power of attorney substantially in the form of Exhibit VI attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, complete the endorsement of the Mortgage Note and take such other steps as may be necessary or desirable to enforce Buyer's rights against such Mortgage Loans, the related Mortgage Files and the Servicing Records.
(g) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including Custodian) are and shall be held in trust by the applicable Seller or its designee for the benefit of Buyer as the owner thereof. The applicable Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by the applicable Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by such Seller or its designee is in a custodial capacity only. The books and records (including any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of the applicable Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,Purchased Mortgage Loan to Buyer. The applicable Seller or its designee (including Custodian) shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any Purchased Mortgage Loan by such Seller.
(Ki) an original From time to time, a Seller may request in writing that Buyer agree to have the Purchased Mortgage Loans registered on the MERS mortgage electronic registry system (the "MERS® System") such that the mortgagee of any guaranty of payment record under such Purchased Mortgage Loans shall be identified as Mortgage Electronic Registration Systems, Inc. ("MERS"). If Buyer agrees to such registration, then prior to effecting such registration for any Purchased Mortgage Loan,
(L) , Sellers shall deliver to Buyer an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements Electronic Tracking Agreement in favor of the originator of such Mortgage Loan or in favor of any assignee prior form and substance acceptable to the applicable Seller Buyer duly executed by Buyer, Sellers, MERS and UCC-3 assignment financing statements in favor of the applicable SellerMERSCORP, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andInc.
Appears in 1 contract
Samples: Master Repurchase Agreement (Fieldstone Investment Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by any Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer at JPMorgan Chase Bank, N.A.: Account No. 100-0-00000, account name: BEAR SXXXXXX SECURITIES CO, FAO LIQUID FUNDING, ABA No. 000000000, not later than 3:00 p.m. New York time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the Sellers (or as otherwise directed by the applicable Seller): Account No. 113207592, specified in for the Confirmation account of HomeBanc Corp. or Account No.: 113397849, for the account of HomeBanc Mortgage Corporation, each at JPMorgan Chase Bank, National Association, ABA No. 000000000, Attn: Treasury Dept., not later than 5:00 p.m. New York City time, simultaneously with the delivery to the Buyer of the Purchased Mortgage Loans relating to such Transaction of the difference between (i) the Purchase Price for Transaction. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable such Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 0000000, account name: Bear Xxxxxxx MBS, Bank One, ABA No. 000-000-000, Attn: Xxxxxx Xxxxx, not later than 3:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable Seller (or as otherwise directed by the Seller): Account No. 2080000697499, specified in for the Confirmation account of HomeBanc Mortgage Corporation, Wachovia Bank, National Association, ABA No. 000000000, Attn: Treasury Dept., not later than 5:00 p.m. New York City time, simultaneously with the delivery to the Buyer of the Purchased Mortgage Loans relating to such Transaction of the difference between (i) the Purchase Price for each Transaction. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer; Account No. GLA 111569 SER, for the account of CDC Mortgage Capital, Inc., Bank of New York, ABA No. 000000000, Attn: Xxxx Xxxxxxx not later than 3 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Notwithstanding the preceding sentence, on each Repurchase Date, Seller shall remit payment of the Repurchase Price to the Settlement Account in accordance with Section 11 of the Custodial Agreement. Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for to or on behalf of Seller not later than 6 p.m., New York City time, simultaneously with the delivery to Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction in accordance with the terms hereof and all feesof the Custodial and Disbursement Agreement. Each of NCCC and NCMC hereby sells, costs transfers, conveys and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including Custodian) without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of NCCC and NCMC, as applicable, in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including Custodian) (i) the Custodian, Custodial Identification Certificate and shall cause (ii) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Disbursement Agreement.
(Ad) the original executed Any Mortgage Note together with any applicable riders, endorsed on Files not delivered to Buyer or its face or designee (including Custodian) are and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan File not delivered to the applicable Seller,
Buyer or its designee (C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording officeincluding Custodian),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions . The possession of the Mortgage have been modifiedFile by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in each case (unless the particular item has not been returned a custodial capacity only. Each Mortgage File retained or held by Seller or its designee shall be segregated on Seller's books and records from the applicable recording office) with evidence other assets of recording indicated thereon if Seller or its designee and the instrument being modified is a recordable document,
(G) originals books and records of all modification agreements in those instances in which Seller or its designee shall be marked appropriately to reflect clearly the terms sale of the related Purchased Asset to Buyer. Seller or provisions its designee shall release its custody of the Mortgage Note have been modified,
(H) File only in accordance with written instructions from Buyer, unless such release is required as incidental to the original policy servicing of the Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a Power of the difference between (i) the Purchase Price for the Attorney to Seller, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Assets. Provided that no Event of Default shall have occurred and all feesbe continuing, costs such Power of Attorney to Seller shall be binding upon Buyer and expenses including, without limitation, reasonable attorneys’ fees Buyer’s successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such Seller shall:
(i) with respect to each Table Funded Purchased Asset, (A) not later than 2:00 p.m. (New York time) on the Purchase Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the applicable related Mortgage Note or Participation Certificate with assignment in blank (as applicable), loan agreement, Mortgage, Title Policy, Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement; (B) not later than 2:00 p.m. (New York time) on the third (3rd) Business Day following the Purchase Date, deliver or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with a Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (C) not later than two (2) Business Days following receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt; and
(ii) with respect to each Purchased Asset that is not a Table Funded Purchased Asset, (A) not later than 2:00 p.m. (New York time) one (1) Business Days prior to the related Purchase Date, deliver and release to Custodian (with a copy to Buyer), together with the Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Table Funded Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (B) on the Purchase Date, cause Custodian to deliver a Trust Receipt confirming receipt of such Purchased Asset Documents; provided that if Seller shall deliver cannot deliver, or cause to be delivered, any of the original Purchased Asset Documents required to be delivered as originals (excluding the Mortgage Note, the Assignment of Mortgage and, if applicable, the Participation Certificate, and any allonge and/or endorsement thereto, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original and shall use commercially reasonable efforts to obtain and deliver such original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using such efforts to obtain the original). After the expiration of such efforts period, Seller shall deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document, and thereafter Seller shall have no further obligation to deliver the related original document.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (including Custodian), Seller shall execute an omnibus Power of Attorney to Buyer irrevocably appointing Buyer its attorney-in-fact with full power to, during the continuance of an Event of Default, (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note or Participation Certificate (as applicable) and (iii) take such other steps as may be necessary or desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the (including Custodian, ) is and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified be held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the extent that such original is retained by the relevant public recording office) a copy terms and conditions of any intervening assignments this Agreement, of the Mortgage showing a complete chain related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of assignment the Purchased Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy of any ground lease Buyer in form and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andsubstance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Resource Capital Corp.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer: JPMorgan Chase Bank, Account Number ***-******, for the credit account: JPMorgan Chase Bank NY; ref: Gestation, ABA# ***-***-*** Attn: Mxxxxxx XxXxxxxx, not later than 5:00 p.m. New York City time (the “Payment Account”), on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for to the Purchased Loan(s) minus following account of Seller: Account #: *********, ABA #: *********, Bank name: City National Bank, Bank Address: 500 X Xxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, Account Name: PLS Loan Funding account (ii) any and all feesor, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable if a warehouse lender is identified to Buyer pursuant to Section 27 3(b)(xvii) hereof, pursuant to such warehouse lender’s written instructions) or Section 30(d) in connection accordance with such the Escrow Agreement, as applicable, simultaneously with the delivery to Buyer of the Purchased Assets relating to each Transaction.
(b) On or before such . With respect to the Purchased Assets being sold by Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing Loan File for the related Purchased Assets. On each Settlement Date, Buyer shall transfer to Seller such funds received by Buyer from a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued Take-out Investor in connection with Transaction Mortgage Loans and the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative related Agency Security that are in excess of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andRepurchase Price.
Appears in 1 contract
Samples: Master Repurchase Agreement (Pennymac Financial Services, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer Administrative Agent, on behalf of Buyer, or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Administrative Agent, on behalf of the difference between (i) the Purchase Price for the Buyer, will provide Seller with a Power of Attorney to Seller, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Assets. Provided that no Event of Default shall have occurred and all feesbe continuing, costs such Power of Attorney to Seller shall be binding upon Administrative Agent, Buyer and expenses including, without limitation, reasonable attorneys’ fees their respective successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such Seller shall (A) not later than 1:00 p.m. (New York time) two (2) Business Days prior to the Purchase Date, deliver to Custodian (with a copy to Administrative Agent, on behalf of Buyer), together with the applicable Seller shall deliver or cause to be delivered to Buyer or its designee Purchased Asset File Checklist, the Custodial Delivery Purchased Asset Documents identified in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be Asset File Checklist delivered and released to the Custodiantherewith, and shall (B) on the Purchase Date, cause the Custodian to deliver a Trust Receipt confirming receipt of such Purchased Asset Documents; provided that with respect to the NEMA Chicago Purchased Asset, Seller shall, (X) not later than 1:00 p.m. (New York time) on the Purchase Date concerning Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the receipt ofrelated (1) Mortgage Note, Mezzanine Note or Participation Certificate with assignment in blank (as applicable), (2) loan agreement, (3) Mortgage or Mezzanine Pledge Agreement and LLC Certificate (as applicable), (4) Title Policy, (5) Insured Closing Letter and Escrow Instructions, if any, and (6) the executed Bailee Agreement and Bailee’s Trust Receipt; (Y) not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the Purchase Date, deliver or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with a Purchased Asset File Checklist, the related Purchased Asset Documents, and (Z) not later than two (2) Business Days following documents receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt; provided that if Seller cannot deliver, or cause to be delivered, any of the original Purchased Asset Documents required to be delivered as originals (collectivelyexcluding the Mortgage Note, Mezzanine Note, the “Loan File”) pertaining to each Assignment of Mortgage, the Purchased Loans identified in LLC Certificate and the Custodial Delivery Participation Certificate, originals of which must be delivered therewith; providedat the time required under the provisions above), that the applicable Seller shall deliver a certificate photocopy thereof and an Officer’s Certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent such copy represents a true and correct copies copy of the originals original and shall use its best efforts to obtain and deliver such original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Administrative Agent, on behalf of Buyer, may consent in its sole discretion, so long as Seller is, as certified in writing to Administrative Agent, on behalf of Buyer, not less frequently than monthly, using its best efforts to obtain the original). After the expiration of such documents:
(A) the original executed Mortgage Note together with any applicable ridersbest efforts period, endorsed Seller shall deliver to Administrative Agent, on its face or by allonge attached theretobehalf of Buyer, without recoursea certification that states, in blank and otherwise showing a completedespite Seller’s best efforts, unbroken chain of endorsement from the initial lender (or, if Seller was unable to obtain such original Mortgage Note has been lostdocument, an affidavit to such effect from the applicable and thereafter Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure shall have no further obligation to deliver the related original document. Notwithstanding the foregoing, Administrative Agent, on behalf of Buyer, shall, at its option, have the right to cancel the purchase of a Purchased Asset if all required originals have not been delivered as required in this Agreement.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Administrative Agent, on behalf of Buyer, and as Administrative Agent shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Administrative Agent, on behalf of Buyer, a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Administrative Agent, on behalf of Buyer, or its designee (including Custodian), Seller shall execute an omnibus Power of Attorney to Administrative Agent, on behalf of Buyer, irrevocably appointing Administrative Agent its attorney‑in‑fact with full power to, during the continuance of an Event of Default only, (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note, together Mezzanine Note, LLC Certificate or Participation Certificate (as applicable) and (iii) take such other steps as may be necessary or desirable to enforce Administrative Agent’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records. Administrative Agent, on behalf of Buyer, shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with a copy Custodian to be held by Custodian on behalf of such Mortgage Note),
Administrative Agent. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Administrative Agent or its designee (Bincluding Custodian) is and shall be held in trust by Seller or its designee for the original benefit of Administrative Agent, on behalf of Buyer, as the owner thereof. Seller or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Administrative Agent, together with an original on behalf of Buyer, or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Administrative Agent, on behalf of Buyer, for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the extent that such original is retained by the relevant public recording office) a copy terms and conditions of any intervening assignments this Agreement, of the Mortgage showing a complete chain related Purchased Asset to Administrative Agent, on behalf of assignment Buyer. Seller or its designee (including Custodian) shall release its custody of the Purchased Asset File only in accordance with written instructions from the originator of Administrative Agent, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Administrative Agent shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy of any ground lease Buyer in form and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andsubstance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (KKR Real Estate Finance Trust Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a power of attorney, substantially in the difference between form attached as Exhibit II-2 hereto, allowing Seller to administer, operate and service such Purchased Assets. Provided that no Event of Default shall have occurred and be continuing, the power of attorney (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitationsubject to the terms of this Agreement, reasonable attorneys’ fees the exercise of any voting or similar rights by Seller) shall be binding upon Buyer and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such TransactionBuyer’s successors and assigns.
(b) On With respect to each Table Funded Purchased Asset (or before such any Transaction for which Buyer approves the utilization of a Bailee), Seller shall cause Bailee to deliver to Buyer by no later than 1:00 p.m. (New York time), on the Purchase Date, in writing (including by email transmission), a true and complete copy of the related Mortgage Note, Mezzanine Note, LLC Certificate or Participation Certificate (as applicable), the Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement. In connection with the sale of each Purchased Asset, not later than 1:00 p.m. (New York time), two (2) Business Days prior to the related Purchase Date (or with respect to a Table Funded Purchased Asset (or any Transaction for which Buyer approves the utilization of a Bailee) not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the applicable Purchase Date), Seller shall deliver or cause Bailee to be delivered deliver (with a copy to Buyer or its designee Buyer) and release to Custodian (together with the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianAsset File Checklist), and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning (or in the case of a Table Funded Purchased Asset (or any Transaction for which Buyer approves the utilization of a Bailee), not later than two (2) Business Days following the receipt by Custodian) confirming the receipt of, the following documents original (or where indicated below, copied) documents, to the extent applicable (collectively, the “Loan FilePurchased Asset Documents”) pertaining ), with respect to each of the Purchased Loans Asset identified in the Custodial Delivery Purchased Asset File Checklist delivered therewith; provided: With respect to each Purchased Asset that is a Mortgage Loan or a Participation Interest, the following documents, as applicable:
(i) the original Mortgage Note bearing all intervening endorsements, endorsed “Pay to the order of “_________” without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized Person of the Last Endorsee (in the event that the Purchased Asset was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Asset was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”) or a lost note affidavit in a form reasonably approved by Buyer, with a copy of the applicable Seller shall deliver Mortgage Note attached thereto;
(ii) the original loan agreement and guaranty, if any, executed in connection with the Purchased Asset;
(iii) the original Mortgage with evidence of recording thereon, or a certificate true and correct copy of an Authorized Representative the original that has been submitted for recordation in the appropriate governmental recording office of such Seller certifying that any copies the jurisdiction where the Mortgaged Property is located;
(iv) with respect to the Mortgage, the originals of documents delivered represent all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or true and correct copies of the originals that have each been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located;
(v) the original Assignment of Mortgage in blank for each Purchased Asset, in form and substance acceptable for recording and signed in the name of the Last Endorsee (in the event that the Purchased Asset was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Asset was acquired or originated while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”);
(vi) the originals of all intervening assignments of mortgage (if any) with evidence of recording thereon, or copies thereof;
(vii) the original Title Policy or, if the original Title Policy has not been issued, a copy of the irrevocable marked commitment to issue the same;
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Asset;
(ix) the original Assignment of Leases, if any, with evidence of recording thereon, or a true and correct copy of the original that has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located;
(x) the originals of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recording thereon, or copies thereof;
(xi) a copy of the UCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing thereon or copies thereof together with evidence that such UCC financing or continuation statements have been sent for filing, and UCC assignments in blank, which UCC assignments shall be in form and substance acceptable for filing in the applicable jurisdictions;
(xii) the original environmental indemnity agreement or similar guaranty or indemnity, whether stand-alone or incorporated into the applicable loan documents (if any);
(xiii) the original omnibus assignment in blank or such other documents necessary and sufficient to transfer to Buyer all of Seller’s right, title and interest in and to the Purchased Asset (if any);
(xiv) a Survey of the Mortgaged Property (if any) as accepted by the title company for issuance of the Title Policy;
(xv) a copy of all servicing agreements related to such Purchased Asset;
(xvi) a copy of the Mortgagor’s opinions of counsel;
(xvii) in the case of a Purchased Asset that is a Participation Interest, the original Participation Certificate evidencing such Participation Interest together with an assignment in blank;
(xviii) in the case of a Purchased Asset that is a Participation Interest, the participation agreement and any other documents evidencing such Participation Interest;
(xix) an assignment of any management agreements, permits, contracts and other material agreements (if any);
(xx) the original or a copy of the intercreditor or co-lender agreement (if any) executed in connection with the Purchased Asset to the extent the subject borrower, or an affiliate thereof, has encumbered its assets with senior, junior or similar financing, whether mortgage financing or mezzanine loan financing;
(xxi) copies of all documents relating to the formation and organization of the related obligor under such Purchased Asset, together with all consents and resolutions delivered in connection with such obligor’s obtaining such Purchased Asset; and
(xxii) all other material documents and instruments evidencing, guaranteeing, insuring, securing or modifying such Purchased Asset, executed and delivered in connection with, or otherwise relating to, such Purchased Asset, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property; With respect to each Purchased Asset that is a Mezzanine Loan, the following documents, as applicable:
(Ai) the original executed Mortgage Mezzanine Note together with any relating to such Mezzanine Loan, which Mezzanine Note shall (A) be endorsed (either on the face thereof or pursuant to a separate allonge) by the most recent endorsee prior to the applicable riders, endorsed on its face or by allonge attached theretoSeller, without recourse, in blank to the order of such Seller and otherwise showing further reflect a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit related originator to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) be accompanied by a separate allonge pursuant to which such Seller has endorsed such Note, without recourse, in blank;
(ii) true and correct copies of the original related intercreditor agreement (if any) and the related Mezzanine Pledge Agreement and all other material documents (including, without limitation, opinions of counsel) or agreements relating to such Mezzanine Loan or affecting the rights (including, without limitation, the security interests) of any holder thereof;
(iii) as applicable, true and correct copies of any assignment, assumption, modification, consolidation or extension made prior to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator related Purchase Date in respect of such Mortgage Loan Mezzanine Note or any document or agreement referred to the applicable Seller,
in clause (Cii) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modifiedabove, in each case case, if the document or agreement being assigned, assumed, modified, consolidated or extended is recordable, with evidence of recording thereon (unless the particular item has not been returned from the applicable recording office);
(iv) with evidence as applicable, an original assignment of recording indicated thereon each agreement referred to in clause (ii) above, in recordable form if the instrument agreement being modified assigned is a recordable document,, executed in blank by the applicable Seller;
(Gv) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loanif certificated, each LLC Certificate, together with its endorsements oran undated power covering each such certificate, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions duly executed by an authorized representative of the title company) to issue such title insurance policy,in blank;
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(Nvi) copies of any all UCC financing statements filed in favor of the originator respect of such Mortgage Mezzanine Loan or in favor of any assignee prior to the applicable Seller related Purchase Date, including all amendments and UCC-3 assignment financing statements in favor of the applicable Sellerassignments related thereto, if any, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by in the applicable filing office,jurisdiction indicated thereon;
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(Pvii) an original assignment of each UCC financing statement filed in respect of such Mezzanine Loan, prepared in blank, in form suitable for filing;
(viii) the related original omnibus assignment, if any, executed in blank;
(ix) the original Title Policy for such Mezzanine Loan (provided that any exception to this item shall note whether the related Purchased Asset File includes a “marked up” commitment or proforma policy marked as binding and countersigned or evidenced as binding by an escrow letter or closing instructions), if any, together with an original mezzanine endorsement, if any, and date down to owner’s policy, if any;
(x) any additional documents identified on the related Purchased Asset File Checklist delivered to Custodian in accordance with Article II of this Agreement; and
(xi) any additional documents required to be added to the related Purchased Asset File pursuant to this Agreement. provided that if Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under the provisions above (excluding the Mortgage Note, Assignment of Mortgage, Mezzanine Note and LLC Certificate, as applicable, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and, unless waived by Buyer, an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original. Seller shall then, (A) use commercially reasonable efforts to obtain and deliver the original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using commercially reasonable efforts to obtain the original), (B) after the expiration of such best efforts period, deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document and (C) thereafter have no further obligation to deliver the related original document.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any subordination agreement such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or intercreditor agreement,
are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (Q) if the Mortgage Note or Mortgage was executed pursuant to a including Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit II-1 attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note, Mezzanine Note, LLC Certificate or Participation Certificate (as applicable) and (iii) take such other instrument that authorized steps as may be necessary or empowered desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records; which power, in each case, Buyer agrees will only be exercised during the continuance of an Event of Default. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee (including Custodian) is and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Purchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such person retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to signreflect clearly the transfer, an original subject to the terms and conditions of this Agreement, of the related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of the Purchased Asset File only in accordance with written instructions from Buyer, unless such power release is required as incidental to the servicing of attorney the Purchased Assets or other instrumentis in connection with a repurchase of any Purchased Asset by Seller or is pursuant to the order of a court of competent jurisdiction.
(d) On the date of this Agreement, andBuyer shall have received all of the following items and documents, each of which shall be satisfactory to Buyer in form and substance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Colony NorthStar Credit Real Estate, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds hereunder shall be in immediately available funds.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Student Loans shall be transferred to the Buyer or its designee (including subject in the Custodiancase of Purchased Federal Student Loans, to the retention of legal title thereto by an AMS Trustee in its capacity as "eligible lender' under the Higher Education Act as in Section 1 set forth,) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating Confirmation.
(c) Seller shall use its best efforts to such Transaction of make arrangements as soon as possible, but in no event later than August 31, 2003 for the difference between Buyer to wire or ACH transfer the Purchase Price with respect to the Student Loans directly to the related Servicers (the "Direct Wiring Capability").
(d) Seller hereby agrees that, with respect to Student Loans which are originated simultaneously with their funding hereunder, the Purchase Price shall be delivered as follows:
(i) Prior to Seller's arranging for the Direct Wiring Capability, on the Purchase Date for each Transaction, the Buyer shall wire the Purchase Price for to the Purchased Loan(s) minus Seller.
(ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d(A) in connection with such Transaction.
(b) On or before such Purchase Date, Upon Seller's arranging for the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased LoanDirect Wiring Capability, on or prior to each the Purchase Date for each Transaction, the Seller shall (1) deliver to the Buyer wiring instructions and amounts with respect to such the Purchased Loan, the applicable Seller shall deliver or cause Student Loans to be delivered funded on such Purchase Date and released (2) remit to the Custodian, and shall cause Buyer's designated account an amount equal to 4% of the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each principal balance of the Purchased Student Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of to be funded on such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andPurchase Date.
Appears in 1 contract
Samples: Master Repurchase Agreement (Uici)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a power of attorney, substantially in the difference between (i) form attached as Exhibit IV-2 hereto, allowing Seller to administer, operate and service such Purchased Assets. Provided that no Event of Default shall have occurred and be continuing, the Purchase Price for the Purchased Loan(s) minus (ii) any power of attorney shall be binding upon Buyer and all fees, costs Buyer’s successors and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such With respect to each Table Funded Purchased Asset, Seller shall cause Bailee to deliver to Buyer by no later than 1:00 p.m. (New York time), on the Purchase Date, by facsimile a true and complete copy of the related Mortgage Note or Participation Certificate (as applicable), the Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement. In connection with the sale of each Purchased Asset, not later than 1:00 p.m. (New York time), two (2) Business Days prior to the related Purchase Date (or with respect to a Table Funded Purchased Asset not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the applicable Purchase Date), Seller shall deliver or cause Bailee to be delivered deliver (with a copy to Buyer or its designee Buyer) and release to Custodian (together with the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianAsset File Checklist), and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning (or in the case of a Table Funded Purchased Asset, not later than two (2) Business Days following the receipt by Custodian) confirming the receipt of, the following documents original (or where indicated below, copied) documents, to the extent applicable (collectively, the “Loan FilePurchased Asset Documents”) ), pertaining to each of the Purchased Loans Assets identified in the Custodial Delivery Purchased Asset File Checklist delivered therewith; provided:
(i) With respect to each Purchased Asset, the following documents, as applicable and subject to Section 7(b)(ii) below:
(A) The original Mortgage Note bearing all intervening endorsements, endorsed “Pay to the order of _________ without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized Person of the Last Endorsee (in the event that the Purchased Asset was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Asset was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”) or a lost note affidavit in a form reasonably approved by Buyer, with a copy of the applicable Seller shall deliver Mortgage Note attached thereto.
(B) The original loan agreement and guaranty, if any, executed in connection with the Purchased Asset.
(C) The original Mortgage with evidence of recording thereon, or a certificate true and correct copy of an Authorized Representative the original that has been submitted for recordation in the appropriate governmental recording office of such Seller certifying that any copies the jurisdiction where the Mortgaged Property is located.
(D) The originals of documents delivered represent all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or true and correct copies of the originals of such documents:
(A) that have each been submitted for recordation in the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor appropriate governmental recording office of the Buyer for any costs, losses or damages arising from jurisdiction where the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original Mortgaged Property is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),located.
(E) an The original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller Mortgage in blank for each Purchased Asset, in form and substance acceptable for recording and signed in recordable form the name of the Last Endorsee (except for missing recording information not yet available if in the instrument being assigned has not been returned from event that the applicable recording officePurchased Asset was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Asset was acquired or originated while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”),.
(F) The originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions intervening assignments of the Mortgage have been modified, in each case mortgage (unless the particular item has not been returned from the applicable recording officeif any) with evidence of recording indicated thereon if the instrument being modified is a recordable document,thereon, or copies thereof.
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the The original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements Title Policy or, if such policy the original Title Policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative a copy of the title company) irrevocable marked commitment to issue such title insurance policy,the same.
(H) The original of any security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Asset.
(I) The original Assignment of Leases, if any, with evidence of recording thereon, or a true and correct copy of any ground lease and any ground lessor estoppels,the original that has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(J) The originals of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recording thereon, or copies thereof.
(K) A copy of the UCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing thereon or copies thereof together with evidence that such UCC financing or continuation statements have been sent for filing, and UCC assignments in blank, which UCC assignments shall be in form and substance acceptable for filing in the applicable jurisdictions.
(L) The original environmental indemnity agreement or similar guaranty or indemnity, whether stand-alone or incorporated into the applicable loan documents (if any).
(M) The original omnibus assignment in blank or such other documents necessary and sufficient to transfer to Buyer all of Seller’s right, title and interest in and to the Purchased Asset (if any).
(N) A Survey of the Mortgaged Property (if any) as accepted by the title company for issuance of the Title Policy.
(O) A copy of all servicing agreements and Servicing Records related to such Purchased Asset, which Seller shall deliver to Servicer (with a copy to Buyer).
(P) A copy of the Mortgagor’s opinions of counsel.
(Q) In the case of a Purchased Asset that is a Participation Interest, the original Participation Certificate evidencing such Participation Interest together with an assignment in blank.
(R) In the case of a Purchased Asset that is a Participation Interest, the participation agreement and any other documents evidencing such Participation Interest.
(S) An assignment of any management agreements, permits, contracts and other material agreements (if any).
(T) Reports of UCC, tax lien, judgment and litigation searches as requested by Buyer, conducted by search firms reasonably acceptable to Buyer with respect to the Purchased Asset, Seller and the related underlying obligor, such searches to be conducted in each location Buyer shall reasonably designate and such reports reasonably satisfactory to Buyer.
(U) The original or a copy of the intercreditor or co-lender agreement (if any) executed in connection with the Purchased Asset to the extent the subject borrower, or an affiliate thereof, has encumbered its assets with senior, junior or similar financing, whether mortgage financing or mezzanine loan financing.
(V) Copies of all documents relating to the formation and organization of the related obligor under such Purchased Asset, together with all consents and resolutions delivered in connection with such obligor’s obtaining such Purchased Asset.
(W) All other material documents and instruments evidencing, guaranteeing, insuring, securing or modifying such Purchased Asset, executed and delivered in connection with, or otherwise relating to, such Purchased Asset, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property.
(ii) If Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under the provisions above (excluding the Mortgage Loan contains a Future Advance ObligationNote, an original of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and, unless waived by Buyer, an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original. Seller shall then, (A) use its commercially reasonable efforts to obtain and deliver the original document within one hundred eighty (180) days after the related loan agreement,Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using its commercially reasonable efforts to obtain the original), (B) after the expiration of such commercially reasonable efforts period, deliver to Buyer a certification that states, despite Seller’s commercially reasonable efforts, Seller was unable to obtain such original document and (C) thereafter have no further obligation to deliver the related original document.
(Kc) an From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any guaranty such other documents, Custodian shall hold such other documents on behalf of payment under such Mortgage Loan,
(L) an original of Buyer and as Buyer shall request from time to time. With respect to any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan documents which have been delivered or in favor of any assignee prior are being delivered to the applicable Seller recording offices for recording and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has have not been returned from to Seller in time to permit their delivery hereunder at the applicable filing officetime required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (including Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit IV-1 attached hereto irrevocably appointing Buyer its attorney-in-fact with evidence full power to, during the continuance of filing indicated thereon or certified by an Event of Default, (i) complete and record any Assignment of Mortgage, (ii) complete the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original endorsement of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed Participation Certificate (as applicable) and (iii) take such other steps as may be necessary or desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee (including Custodian) is and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Purchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the terms and conditions of this Agreement, of the related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of the Purchased Asset File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Assets or is in connection with a repurchase of any Purchased Asset by Seller or is pursuant to the order of a power court of attorney or other instrument that authorized or empowered such person competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the following items and documents, each of which shall be satisfactory to sign, an original of such power of attorney or other instrument, andBuyer in form and substance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (LoanCore Realty Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY. Paragraph 7 of the Agreement ("Payment and Transfer") is hereby deleted and replaced in its entirety by the following provisions of this Section 7:
(a) On Subject to the terms and conditions of the Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction of the difference between (i) Transaction. On the Purchase Price Date for the first Transaction, Buyer will provide Seller with a power of attorney, substantially in the form attached as Exhibit IV-2 hereto, in recordable form, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Loans. Provided no Event of Default shall have occurred and all feesbe continuing, costs the power of attorney shall be binding upon Buyer and expenses including, without limitation, reasonable attorneys’ fees Buyer's successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such With respect to each Table Funded Purchased Loan, Seller shall cause the Bailee to deliver to the Custodian (with a copy to Buyer) by no later than 1:00 p.m. (New York time), on the Purchase Date, by facsimile the related promissory note (or the participation certificate, as applicable), the Insured Closing Letter and Escrow Instructions, if any, the Bailee Agreement and a Trust Receipt issued by the Bailee thereunder on or before the related Purchase Date. In connection with the sale of each Purchased Loan, not later than 1:00 p.m., two (2) Business Days prior to the related Purchase Date (or on the related Purchase Date, as may be agreed by Buyer and Seller on a case by case basis) (or with respect to a Table Funded Purchased Loan not later than 1:00 p.m. (New York time) on the third Business Day following the applicable Purchase Date), Seller shall deliver or cause Bailee to be delivered deliver (with a copy to Buyer or its designee Buyer) and release to the Custodian (together with the Custodial Delivery Certificate in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianIII), and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning (or in the case of a Table Funded Purchased Loan, not later than two (2) Business Days following the receipt of, by the Custodian) confirming the receipt of the following original documents (collectively, the “"Purchased Loan File”) "), pertaining to each of the Purchased Loans identified in the Custodial Delivery Certificate delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 00000000, for the account of Xxxxxx Commercial Paper Inc., Citibank, ABA No. 000000000, not later than 3:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to the Buyer or its designee against the simultaneous transfer of the Purchase Price to the following account of the Seller (or as otherwise directed by the Seller): Account No. 0000000, for the account of Anthracite Capital, Inc., Citigroup Global Markets, For Further Credit, Account No. 00000000, JPMorgan Chase Bank, N.A., ABA No. 000000000, not later than 5:00 p.m. New York City time, simultaneously with the delivery to the Buyer of the Purchased Assets relating to each Transaction. With respect to the Purchased Assets being sold by a Seller on a Purchase Date, the Seller hereby sells, transfers, conveys and assigns to Buyer or its designee (including without recourse, but subject to the Custodian) against terms of this Repurchase Agreement, all the simultaneous transfer to an account right, title and interest of the applicable Seller, specified Seller in the Confirmation relating and to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(sAssets together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in In connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer Asset File for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andPurchased Assets.
Appears in 1 contract
Samples: Master Repurchase Agreement (Anthracite Capital Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVIII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan which is not a Wet Ink Mortgage Loan (or with respect to item (viii) below within five Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectively, collectively the “Loan Mortgage File”) ), pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided:
(i) the original Mortgage Note bearing all intervening endorsements (or allonges), endorsed “Pay to the order of , without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized officer (in the event that the applicable Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[the Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: “[the Last Endorsee], formerly known as [previous name]”);
(ii) the original of any guarantee executed in connection with the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon or a copy certified by Seller, its agent or the title company on behalf of Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of to have been sent for recording;
(iv) the originals of such documents:all assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller, its agent or the title company on behalf of Seller to have been sent for recording, if any;
(Av) the original executed assignment of Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lostLoan is and will be registered on the MERS System, an affidavit to showing MERS as the assignee of such effect from Mortgage) for each Mortgage Loan, in form and substance acceptable for recording and signed in the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor name of the Buyer for any costsLast Endorsee (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, losses the signature must be in the following form: “[the Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Mortgage Loan was acquired or damages arising from originated while doing business under another name, the failure to deliver signature must be in the original Mortgage Notefollowing form: “[the Last Endorsee], together with a copy of such Mortgage Noteformerly known as [previous name]”),;
(Bvi) the original or (to the extent that such original is retained by the relevant public recording office) a copy originals of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any all intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) mortgage with evidence of recording indicated thereon or copies certified by Seller to have been sent for recording, if the instrument being modified is a recordable document,any;
(Gvii) originals the original of all modification agreements any security agreement, chattel mortgage or equivalent document executed in those instances in which the terms or provisions of connection with the Mortgage Note have been modified,(if any);
(Hviii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, an irrevocable, binding the commitment or binder to issue the same (which may be an agreement to provide marked by the same pursuant to binding escrow instructions executed title insurance company) and a certified copy of mortgage insurance, if applicable; and
(ix) the original power of attorney, if any, or a copy thereof certified by an authorized representative officer of the title company) to issue such title insurance policy,Seller, for any document described above; and
(I) a copy of any ground lease and any ground lessor estoppels,
(Jx) if such Mortgage Loan contains is and will be registered on the MERS System, evidence, in accordance with the MERS procedures manual, that Borrower has designated the Servicer as the servicer or subservicer in the MERS System for such Purchase Mortgage Loan.
(e) In connection with each sale, transfer, conveyance and assignment, with respect to each Mortgage Loan which is a Future Advance ObligationWet Ink Mortgage Loan, (x) on each Purchase Date, Seller shall cause the related Mortgage Note for each funded Mortgage Loan to be faxed to the Custodian and (y) on or prior to 1:30 p.m. (New York City time) on the fifth Business Day following each Purchase Date, Seller shall deliver or cause to be delivered to the Custodian a complete Mortgage File. On the date on which the Buyer receives a Trust Receipt from the Custodian certifying that a complete Mortgage File with respect to a Wet Ink Mortgage Loan is in the possession of the Custodian, such Wet Ink Mortgage Loan be deemed a standard Mortgage Loan (and no longer a Wet Ink Mortgage Loan) for all purposes hereunder, including, without limitation, determination of the Pricing Spread and compliance with subsection (zz) of Schedule 1.
(f) With respect to each Mortgage Loan delivered by Seller to Buyer or its designee (including the Custodian), Seller shall have executed an original omnibus power of attorney substantially in the form of Exhibit VII attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, complete the endorsement of the Mortgage Note and take such other steps as may be necessary or desirable to enforce Buyer’s rights against such Mortgage Loans, the related Mortgage Files and the Servicing Records.
(g) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,Purchased Mortgage Loan to Buyer. Seller or its designee (including the Custodian) shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any Purchased Mortgage Loan by Seller.
(Ki) an original From time to time, the Seller may request in writing that the Buyer agree to have the Purchased Mortgage Loans registered on the MERS CORP., Inc. mortgage electronic registry system (the “MERS System”) such that the mortgagee of any guaranty of payment record under such Purchased Mortgage Loans shall be identified as Mortgage Electronic Registration Systems, Inc. (“MERS”). If Buyer agrees to such registration, then prior to effecting such registration for any Purchased Mortgage Loan,
(L) , Seller shall deliver to Buyer an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements Electronic Tracking Agreement in favor of the originator of such Mortgage Loan or in favor of any assignee prior form and substance acceptable to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andBuyer.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer; Account No. GLA 111569, account name SER, Bank of New York, ABA No. 000000000, Attn: Xxxx Xxxxxxx, not later than 3 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for to or on behalf of the Seller not later than 6 p.m., New York City time, simultaneously with the delivery to the Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction in accordance with the terms hereof and all feesof the Custodial and Disbursement Agreement. Each of NCCC, costs NCAH, NCMC, New Century and expenses includingHome123 hereby sells, without limitationtransfers, reasonable attorneys’ fees conveys and disbursements payable assigns to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee (including the Custodial Delivery Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of NCCC, NCAH, NCMC, New Century and Home123, as applicable, in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Buyer or its designee (including the Custodian, ) (i) the Custodial Identification Certificate and shall cause (ii) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery and Disbursement Agreement.
(d) Any Mortgage Files not delivered therewith; provided, that to the applicable Buyer or its designee (including the Custodian) are and shall be held in trust by the Seller or its designee for the benefit of the Buyer as the owner thereof. The Seller or its designee shall deliver maintain a certificate copy of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true the Mortgage File and correct copies of the originals of such documents:
the Mortgage File not delivered to the Buyer or its designee (A) including the original executed Custodian). The possession of the Mortgage Note together with any applicable riders, endorsed on its face or File by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee is at the applicable Seller in favor will of the Buyer for any coststhe sole purpose of servicing the related Purchased Asset, losses and such retention and possession by the Seller or damages arising its designee is in a custodial capacity only. Each Mortgage File retained or held by the Seller or its designee shall be segregated on the Seller’s books and records from the failure other assets of the Seller or its designee and the books and records of the Seller or its designee shall be marked appropriately to deliver reflect clearly the original Mortgage Note, together with a copy sale of such Mortgage Note),
(B) the original or (related Purchased Asset to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original Buyer. The Seller or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments its designee shall release its custody of the Mortgage showing a complete chain of assignment File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified Purchased Asset by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andSeller.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Sellers hereunder will be made in Dollars, in immediately available funds, without deduction, set off or counterclaim, to Buyer at the account detailed in Schedule 4 no later than 5:00 p.m. (New York City time), on the date on which such payment is due (and each such payment made after such time will be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans shall be Assets is transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the account of (i) with respect to Mortgage Loans for which a Warehouse Lender’s Release is delivered, the Warehouse Lender, (ii) with respect to Mortgage Loans for which a Sellers’ Release is delivered, the applicable Seller, specified (iii) with respect to Wet-Ink Mortgage Loans, the Settlement Agent, (iv) with respect to Correspondent Mortgage Loans for which no bailee letter from the Correspondent Mortgage Lender or its designee or other evidence of release, in each case, in form and substance acceptable to Buyer in its good faith discretion is delivered, to PMC, in each case as detailed in the Confirmation related Transaction Request, simultaneously with the delivery to Buyer of the Purchased Assets relating to such each Transaction, and (v) with respect to Correspondent Mortgage Loans for which a bailee letter from the Correspondent Mortgage Lender or its designee or other evidence of release, in each case, in form and substance acceptable to Buyer in its good faith discretion is delivered, to the party as detailed in the related Transaction Request and the bailee letter, simultaneously with the delivery to Buyer of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable Assets relating to Buyer pursuant to Section 27 or Section 30(d) in connection with such each Transaction.
(bc) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer the CustodianMortgage File for the related Purchased Assets.
(d) From time to time, Sellers may provide funds to Buyer for deposit to a non-interest bearing demand deposit account (the “Operating Account”) in accordance with this Section 10. The Operating Account shall be established by the Buyer with the Bank and shall cause be in the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each name of the Purchased Loans identified Buyer. The Buyer shall have exclusive withdrawal rights from the Operating Account. Buyer shall maintain records of Sellers’ interest in the Custodial Delivery delivered therewith; providedfunds maintained in the Operating Account and shall deliver, that or cause to be delivered, to Sellers on a daily basis a balance statement for the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that Operating Account. Withdrawals may be paid by wire transfer or any copies of documents delivered represent true and correct copies of the originals of such documents:other means chosen by Buyer from time to time in its good faith discretion.
(Ae) the original executed Mortgage Note together with any applicable ridersNo more than once per day, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing Sellers may submit a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment written request (which may be an agreement via e-mail) to provide Buyer to withdraw available funds from the Operating Account to be applied pursuant to such request. If such request is received by Buyer on or prior to 5:00 p.m. (New York City time) on any Business Day, such funds shall be remitted in accordance with such request on the same pursuant to binding escrow instructions executed by an authorized representative of Business Day; provided, that, any request received after 5:00 p.m. (New York City time) shall be remitted on the title company) to issue such title insurance policy,following Business Day.
(If) In connection with any purchase by a copy of any ground lease and any ground lessor estoppels,
Takeout Investor (J) if such Mortgage Loan contains a Future Advance Obligationdate, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office“Takeout Date”), with evidence any amounts received in excess of filing indicated thereon or certified by amounts due to Buyer shall be deposited into the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andOperating Account.
Appears in 1 contract
Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a Power of the difference between (i) the Purchase Price for the Attorney to Seller, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Assets. Provided that no Event of Default shall have occurred and all feesbe continuing, costs such Power of Attorney to Seller shall be binding upon Buyer and expenses including, without limitation, reasonable attorneys’ fees Buyer’s successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such Seller shall:
(i) with respect to each Table Funded Purchased Asset, (A) not later than 2:00 p.m. (New York time) on the Purchase Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the applicable related Mortgage Note or Participation Certificate with assignment in blank (as applicable), loan agreement, Mortgage, Title Policy, Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement; (B) not later than the third (3rd) Business Day following the Purchase Date, deliver or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with a Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (C) not later than two (2) Business Days following receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt; and
(ii) with respect to each Purchased Asset that is not a Table Funded Purchased Asset, either (1) (A) not later than 2:00 p.m. (New York time) two (2) Business Days prior to the related Purchase Date, deliver and release to Custodian (with a copy to Buyer), together with the Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (B) on the Purchase Date, cause Custodian to deliver a Trust Receipt confirming receipt of such Purchased Asset Documents or (2) (A) not later than 2:00 p.m. (New York time) on the Purchase Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the related Mortgage Note or Participation Certificate with assignment in blank (as applicable), loan agreement, Mortgage, Title Policy, Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement and Trust Receipt; (B) on the third (3rd) Business Day following the Purchase Date, deliver or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with a Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (C) not later than two (2) Business Days following receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt; provided that if Seller shall deliver cannot deliver, or cause to be delivered, any of the original Purchased Asset Documents required to be delivered as originals (excluding the Mortgage Note, the Assignment of Mortgage and, if applicable, the Participation Certificate, and any allonge and/or endorsement thereto, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original and shall use commercially reasonable efforts to obtain and deliver such original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using its commercially reasonable efforts to obtain the original). After the expiration of such period, Seller shall deliver to Buyer a certification that states, despite Seller’s commercially reasonable efforts, Seller was unable to obtain such original document, and thereafter Seller shall have no further obligation to deliver the related original document. Subject to the foregoing, Buyer shall, at its option, have the right to cancel the purchase of an Eligible Asset if all required originals have not been delivered as required in this Agreement.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (including Custodian), Seller shall execute an omnibus Power of Attorney to Buyer irrevocably appointing Buyer its attorney-in-fact with full power to, upon an Event of Default that has occurred and is continuing, (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note or Participation Certificate (as applicable) and (iii) take such other steps as may be necessary or desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the (including Custodian, ) is and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified be held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the extent that such original is retained by the relevant public recording office) a copy terms and conditions of any intervening assignments this Agreement, of the Mortgage showing a complete chain related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of assignment the Purchased Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy of any ground lease Buyer in form and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andsubstance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (TPG RE Finance Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans and all other Repurchase Assets shall be transferred by the applicable Seller to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of designated by the applicable Seller, Seller specified in the Confirmation or Purchase Price Increase Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On In connection with the sale of each Purchased Loan or before such funding of Purchase DatePrice Increase, the in accordance with Section 3(c):
(i) The applicable Seller shall deliver (with an electronic copy to Buyer) and release to Custodian the following original (or cause where indicated, copied) documents, to be delivered the extent applicable and subject to Buyer or its designee clause (iv) below (collectively, the “Purchased Loan File”), together with a Custodial Delivery in the form attached hereto as Exhibit IV. In connection Certificate provided to Custodian (with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior an electronic copy to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianBuyer), and shall cause the Custodian to deliver a Trust Receipt Receipt, inventory report and Exception Report to Buyer on the Purchase Date concerning confirming the receipt of, the following documents (collectively, the “of such Purchased Loan File”) Documents pertaining to each of the Purchased Loans identified in the Custodial Delivery Certificate delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable ridersNote, bearing all intervening endorsements, endorsed on its face or by allonge attached theretoan Authorized Representative of the originator “pay to the order of, without recourse” to blank, in blank and otherwise showing a complete, unbroken chain of endorsement from or if the initial lender (or, if such original Mortgage Note has been lostlost or destroyed, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),Note together with a lost note affidavit;
(B) the original or a copy of any guarantee of which the Custodian has been specifically notified (to as identified in the extent that such Mortgage Loan Schedule accompanying delivery of the related Mortgage Loan File) in connection with the Mortgage Note (if any);
(C) (A) the original is retained by the relevant public recording office) Mortgage or a copy of the Mortgage, together Mortgage with an original or evidence of recording thereon; and (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(CB) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment the recorded power of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available attorney, if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney with evidence of recording thereon, if recordation is required;
(D) originals, or other instrument copies of any intervening Assignments of Mortgage with evidence of recording thereon; provided that authorized if any such Assignment of Mortgage is in the process of recordation, such Assignment of Mortgage may be evidenced by a certified copy;
(E) the originals or empowered such person to signcopies of all assumption, modification, consolidation or extension agreements of which the Custodian has been specifically notified (as identified in the Mortgage Loan Schedule accompanying delivery of the related Mortgage Loan File) , with evidence of recording thereon if noted as required on the Mortgage Loan Schedule;
(F) (A) for each Mortgage Loan that is not registered with the Mortgage Electronic Registration System, Inc. (“MERS”) an original Assignment of the Mortgage prepared in blank, which, in each case, shall be in form and substance acceptable for recording, and (B) in the case of each Mortgage Loan registered with MERS, the original Mortgage or copy thereof as provided in (iii) above, noting the presence of the Mortgage Identification Number (the “MIN”) and including either language indicating that the Mortgage Loan is a Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for the originator of such power loan and its successors and assigns (a “MOM Loan”) or if the Mortgage Loan was not a MOM Loan at origination, the assignment thereof to MERS, together with (x) an assignment of attorney such Mortgage Loan registered with MERS from MERS to the originator and (y) the original assignment of such Mortgage Loan registered with MERS from the originator in blank; and
(G) the original or a copy of the Title Policy or attorney’s opinion of title and abstract of title, together with all endorsements or riders that were issued with or subsequent to the issuance of such policy (if any), insuring the priority of the Mortgage as a first lien (or with regards to Closed End Second Lien Loans, a second lien) on the Mortgaged Property represented therein as a fee interest vested in the mortgagor;
(H) all original Mortgagor Equity Certificate(s) held as collateral for the Mortgage Loan, if any, together with an original endorsement to such certificate(s) in blank; and
(I) with respect to the Mortgagor Equity Certificates, if any, a copy of the UCC financing statements and all necessary UCC continuation statements with evidence of filing thereon or, if unrecorded, copies thereof together with evidence that such UCC financing or continuation statements have been sent for filing, and UCC assignments in blank, which UCC assignments shall be in form and substance acceptable for filing in the applicable jurisdictions.
(ii) In addition to the documents described in clause (i) above, the applicable Seller shall deliver the following with respect to each Bridge Loan:
(A) the original or a copy of the business purpose and non-occupancy affidavit or the certificate of investment property executed by the related Mortgagor;
(B) a copy of each UCC-1 financing statement for Mortgagor, recorded copies to trail when recorded, if any;
(C) a copy of the UCC-3 financing statement for Mortgagor, recorded copies to trail when recorded, if any;
(D) a copy of the officer’s certificate of Mortgagor, if any;
(E) copies of uniform commercial code search results with respect to Mortgagor, if any;
(F) the original of the environmental indemnity with respect to the related Mortgaged Property, if any;
(G) the original or copy of any personal guaranty entered into by an individual guarantor of the Mortgagor, if any;
(H) the original of any security agreement, together with a cross-collateralization agreement and any addenda or riders thereto, chattel mortgage or equivalent document (if any) executed in connection with the Purchased Loan;
(I) the originals of all lockbox agreements, cash management agreements (in each case, if any) relating to such Purchased Loan;
(J) the original or a copy of the intercreditor or co-lender agreement (if any) executed in connection with the Purchased Loan;
(K) an original or copy of Mortgagor’s certificate or title affidavit (if any);
(L) an original or copy survey of the related Mortgaged Property (if any);
(M) a copy of the opinion of counsel (if any) of Mortgagor and (if applicable) any guarantor;
(N) an original or copy assignment of permits, contracts and agreements (if any);
(O) the original of all letters of credit in connection with such Purchased Loan with any modifications, amendments or endorsements (if any); and
(P) the original pledge agreement (if any).
(iii) In addition to the documents described in clause (i) above, the applicable Seller shall deliver and release to Buyer or its designee (which may include Servicer) in accordance with Section 3(c)(i), the following documents, which may be in the form of electronic copies, to the extent applicable, and subject to clause (v) below:
(A) A copy or the original of any assignment of any management agreements (if any).
(B) With respect to each Mortgaged Property: (i) evidence of property and business liability insurance for such Mortgaged Property, (ii) an Appraisal of such Mortgaged Property and (iii) a copy of any related Construction Verification Agent Report.
(iv) In addition, the applicable Seller shall deliver and release to Buyer or its designee (which may include Servicer) in accordance with Section 3(c)(i), the following documents, which may be in the form of electronic copies, to the extent applicable, no later than five (5) Business Days after such Seller enters into a default under any Transaction Document or Buyer requests such documents:
(A) Copies of all documents relating to the formation and organization of the related obligor under such Purchased Loan, together with all consents and resolutions delivered in connection with such obligor’s obtaining such Purchased Loan.
(B) With respect to each Mortgaged Property, a copy of the deed evidencing ownership of such Mortgaged Property by the Mortgagor.
(v) The applicable Seller shall deliver the original executed Mortgage Note bearing all intervening endorsements, the original or copy of the loan agreement, the original mortgage and any intervening assignments of mortgage with evidence of recording thereon (or a certified true copy of a mortgage or assignment out for recording) and the original Title Policy (as required by clause (b)(i)(A), (C), (D) and (G) of this Section 7) for each Purchased Loan by no later than the related Purchase Date. If such Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under clauses (b)(i)(C), (D), (E), (G), (H) and (I), clause (b)(ii) and clause (b)(iii) of this Section 7, such Seller shall deliver a true and correct photocopy thereof. Such Seller shall use commercially reasonable efforts to obtain and deliver the original document within thirty (30) days (or, if such original document has been submitted for recordation in the appropriate governmental recording office but not yet returned, one hundred eighty (180) days) after the related Purchase Date. After the expiration of the applicable period specified above, Repo Agent may, in its sole and absolute discretion, reduce the Asset Value for such Purchased Loan to $0.00.
(c) From time to time, the applicable Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any such other instrumentdocuments, andCustodian shall hold such other documents on behalf of Buyer pursuant to the Custodial Agreement. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to the applicable Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, such Seller shall deliver to Custodian a true, correct and complete copy of the original, which has been transmitted for recordation. The applicable Seller shall deliver such original documents to Custodian promptly when they are received. All Purchased Loan Files shall be deposited directly with Custodian to be held by Custodian on behalf of Buyer. The Purchased Loan Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Loan File not delivered to Custodian is and shall be held in trust by the applicable Seller or its designee for the benefit of Buyer as the owner thereof. The applicable Seller or its designee shall maintain a copy of the Purchased Loan File and the originals of the Purchased Loan File not delivered to Custodian. The possession of the Purchased Loan File by the applicable Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Loan, and such retention and possession by the applicable Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of the applicable Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the terms and conditions of this Agreement, of the related Purchased Loan to Buyer. The applicable Seller or its designee (including Custodian) shall release its custody of the Purchased Loan File only in accordance with written instructions from Repo Agent, unless such release is required as incidental to the servicing of the Purchased Loans, is in connection with a Mortgage Loan that was delivered to Custodian by such Seller but was not purchased by Buyer pursuant to this Agreement or is in connection with a repurchase of any Purchased Loan by such Seller or is pursuant to the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Sellers shall have caused Buyer or Repo Agent to have received all of the following items and documents, each of which shall be required to be satisfactory to Repo Agent in form and substance:
Appears in 1 contract
Samples: Master Repurchase Agreement (Angel Oak Mortgage, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer: Bank: Sovereign Bank; ABA Number: 000000000; A/C Number: 9608191500; A/C Name: Sovereign Bank; Ref: Hanover Capital Repo, not later than 4:00 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for not later than 4:00 p.m., New York City time, simultaneously with the delivery to Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction. Seller hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including Custodian) without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IVPurchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items. Upon Buyer's request, the parties shall cause each MERS Designated Loan to be noted by MERS to be held for Buyer's benefit.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including Custodian) (i) the MERS number for each MERS Designated Loan, (ii) the Mortgage Files, (iii) the Mortgage Loan Schedule and (iv) the Electronic Tracking Agreement.
(d) Any Mortgage Files not delivered to Buyer or its designee (including Custodian, ) are and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified be held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan File not delivered to the applicable Seller,
Buyer or its designee (C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording officeincluding Custodian),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions . The possession of the Mortgage have been modifiedFile by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in each case (unless the particular item has not been returned a custodial capacity only. Each Mortgage File retained or held by Seller or its designee shall be segregated on Seller's books and records from the applicable recording office) with evidence other assets of recording indicated thereon if Seller or its designee and the instrument being modified is a recordable document,
(G) originals books and records of all modification agreements in those instances in which Seller or its designee shall be marked appropriately to reflect clearly the terms sale of the related Purchased Asset to Buyer. Seller or provisions its designee shall release its custody of the Mortgage Note have been modified,
(H) File only in accordance with written instructions from Buyer, unless such release is required as incidental to the original policy servicing of the Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (Hanover Capital Mortgage Holdings Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a Power of the difference between (i) the Purchase Price for the Attorney to Seller, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Assets. Provided that no Event of Default shall have occurred and all feesbe continuing, costs such Power of Attorney to Seller shall be binding upon Xxxxx and expenses including, without limitation, reasonable attorneys’ fees Xxxxx’s successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such Seller shall:
(i) with respect to each Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) on the Purchase Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the applicable related Mortgage Note or Participation Certificate with assignment in blank (as applicable), loan agreement, Mortgage, Title Policy, Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement; (B) not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the Purchase Date, deliver or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with a Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (C) not later than two (2) Business Days following receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt; and
(ii) with respect to each Purchased Asset that is not a Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) two (2) Business Days prior to the related Purchase Date, deliver and release or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with the Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Table Funded Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and the executed Bailee Agreement, as applicable, and (B) on the Purchase Date, cause Custodian to deliver a Trust Receipt confirming receipt of such Purchased Asset Documents; provided that if Seller shall deliver cannot deliver, or cause to be delivered, any of the original Purchased Asset Documents required to be delivered as originals (excluding the Mortgage Note, the Assignment of Mortgage and, if applicable, the Participation Certificate, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original and shall use its best efforts to obtain and deliver such original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using its best efforts to obtain the original). After the expiration of such best efforts period, Seller shall deliver to Buyer a certification that states, despite Seller’s best efforts, Xxxxxx was unable to obtain such original document, and thereafter Seller shall have no further obligation to deliver the related original document. Notwithstanding the foregoing, Buyer shall, at its option, have the right to cancel the purchase of an Eligible Asset if all required originals have not been delivered as required in this Agreement.
(c) From time to time, Seller shall forward to Custodian additional original documents (or additional documents reasonably requested by Xxxxx and can be provided by Seller without undue burden) evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (including Custodian), Seller shall execute an omnibus Power of Attorney to Buyer irrevocably appointing Buyer its attorney-in-fact with full power to (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note or Participation Certificate (as applicable) and (iii) take such other steps as may be necessary or desirable to enforce Xxxxx’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the (including Custodian, ) is and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified be held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the extent that such original is retained by the relevant public recording office) a copy terms and conditions of any intervening assignments this Agreement, of the Mortgage showing a complete chain related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of assignment the Purchased Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy of any ground lease Buyer in form and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andsubstance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Ares Commercial Real Estate Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: JPMorgan Chase Bank, N.A. 1111 Xxxxxx, 12th Floor Mail Code TX2-F200 ABA: 000-000-000 Attention: Mortgage Banking Warehouse Services – Xxxxx Xxxx Phone: 000-000-0000 Account Number: 00113327507 For Credit To: Fieldstone not later than 3:00 p.m. (Central time) for manual entries and 4:00 p.m. (Central time) for all other entries, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Sellers acknowledge that they have no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable SellerSellers (or as otherwise directed by the Sellers): Account No. 00113327531 (FIC) or 00100376798 (FMC), specified in JPMorgan Chase Bank, N.A., ABA No. 000000000, Attn: Mortgage Banking Warehouse Services – Xxxxx Xxxx, (the Confirmation “Operating Account”) simultaneously with the delivery to the Buyer of the Purchased Mortgage Loans relating to such Transaction of the difference between (i) the Purchase Price for each Transaction. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable each Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to Date, such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
Samples: Master Repurchase Agreement (Fieldstone Investment Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan which is not a Wet Ink Mortgage Loan (or with respect to item (vii) below within five Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified ------------- in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements, endorsed on its face or by allonge attached thereto, "Pay to the order of ________ without recourse, and without representation or warranty, express or implied" and signed in blank and otherwise showing the name of the last endorsee (the "Last Endorsee") by an authorized officer (in the ------------- event that the Mortgage Loan was acquired by the Last Endorsee in a completemerger, unbroken chain the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of endorsement from predecessor]"; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(or, if such ii) the original of any guarantee executed in connection with the Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,or copies certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, the commitment or binder to issue the same; and
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any).
(e) In connection with each sale, transfer, conveyance and assignment with respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, on or prior to the fifth Business Day following each Purchase Date, Seller shall deliver or cause to be delivered to the Custodian a complete Mortgage File. Further, if requested by Buyer, on the Purchase Date with respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, Seller shall fax an irrevocableexecuted copy of the respective Mortgage Note to the Custodian. On the date on which the Buyer receives a Trust Receipt from the Custodian certifying that a complete Mortgage File with respect to a Wet Ink Mortgage Loan is in the possession of the Custodian, binding commitment such Wet Ink Mortgage Loan be deemed a standard Mortgage Loan (which and no longer a Wet Ink Mortgage Loan) for all purposes hereunder including, without limitation, determination of the Pricing Spread and compliance with subsection (aaa) of Exhibit V.
(f) With respect to all of the Mortgage Loans delivered by Seller to Buyer or its designee (including the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, complete the endorsement of the Mortgage Note and take such other steps as may be an agreement necessary or desirable to provide enforce Buyer's rights against such Mortgage Loans, the same pursuant to binding escrow instructions executed by an authorized representative of related Mortgage Files and the title company) to issue such title insurance policy,Servicing Records.
(Ig) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,
Purchased Mortgage Loan to Buyer. Seller or its designee (Kincluding the Custodian) an original shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Purchased Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (United Panam Financial Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set off or counterclaim, to Buyer at the following account maintained by Buyer: Account No. 40711421, for the account of Goldman Sachs Mortgage Company; Referxxxx: Xxerican Home Mortgage Xxxxxxxsx, Xxtibank, N.A., ABA No. 02100089, not later than 3:00 p.m. New York City time, on the date xx xxxxh such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Sellers acknowledge that they have no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price to the following account of Sellers (or as otherwise directed by Sellers): Account No. [_________________], for the account of [_________________] [BANK], ABA No. [_________________], Attn: [_________________]. With respect to the Purchased Loan(s) minus (ii) Mortgage Loans being sold by any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered Sellers hereby sell, transfer, convey and assign to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Agreement, all their respective right, title and interest in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
Samples: Master Repurchase Agreement (American Home Mortgage Investment Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer: Account No. 3078-4686, for the account of Xxxxxx Brothers Holdings Inc.; Reference: Xxxxxx Brothers Bank, FSP Warehouse, Citibank, ABA No. 000-000-000 on the date on which such payment shall become due. Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price to the following account of Seller (or as otherwise directed in writing by Seller): Account No. 124700002613, for the account of Xxxxxx Brothers Bank, FSB, Delaware Retail Clearing, Xxxxxx Brothers Bank FSB, ABA No. 000000000, Attn: Delaware Retail Clearing. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, but subject to the terms of this Agreement, all their respective right, title and interest in blank and otherwise showing a complete, unbroken chain of endorsement from to the initial lender (or, if such original Purchased Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, Loans together with a copy of such Mortgage Note),
(B) the original or (all right, title and interest in and to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy proceeds of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andRepurchase Assets.
Appears in 1 contract
Samples: Master Repurchase Agreement
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer: Account No. [***], for the account of JPMorgan Chase Bank, N.A., JPMorgan Chase, ABA No. [***], Attn: Xxxxxx Xxxxxx, Ref: Quicken Loans, not later than 5:00 p.m. New York City time (the “Payment Account”), on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for to the following account of Seller: Account No. [***], Quicken Loans Deposit Account, JPMorgan Chase Bank, N.A., ABA No. [***], Attn: Xxxxx Xxxxxx, simultaneously with the delivery to Buyer of the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable Assets relating to Buyer pursuant each Transaction. With respect to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such the Purchased Assets being sold by Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee on a servicing released basis without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IVPurchased Assets (including the related Servicing Rights), together with all right, title and interest in and to the proceeds of any related Pledged Items. Buyer has the right to designate each servicer of the Purchased Assets; the Servicing Rights and other servicing provisions of this Agreement are not severable from or to be separated from the Purchased Assets under this Agreement.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer Asset Files for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller Purchased Assets, Underlying Assets and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andPledged Assets.
Appears in 1 contract
Samples: Master Repurchase Agreement (Rocket Companies, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVMortgage Asset Schedule. In connection with each sale, transfer, conveyance and assignment of a Purchased LoanAsset, on or prior to each Purchase Date with respect to such Purchased LoanAsset, the applicable Seller shall deliver or cause to be delivered and released to Custodian the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan Purchased Asset File”) set forth below in this Section 7(b) and pertaining to each of the Purchased Loans Assets identified in the Custodial Delivery Mortgage Asset Schedule delivered therewith; therewith (provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documentsdocuments and, if applicable, that the originals of such documents have been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located):
(i) with respect to each Whole Loan and A-Note:
(A) the The original executed Mortgage Note together with any applicable riders(and, endorsed on its face if applicable, one or by allonge attached thereto, without recourse, in blank and otherwise showing more allonges) bearing all intervening endorsements (including those reflecting a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Originator to Seller or another prior holder (if any)), endorsed “Pay to the order of [_____________________] without recourse” and a customary indemnity from signed in the applicable name of Seller by an authorized Person (in the event that the Purchased Asset was acquired by Seller in favor a merger, the signature must be in the following form: “FS CREIT Finance NTX-1 LLC, successor by merger to [name of predecessor]”; or in the Buyer for any costsevent that the Purchased Asset was acquired or originated by Seller while doing business under another name, losses or damages arising from the failure to deliver signature must be in the original Mortgage Notefollowing form: “FS CREIT Finance NTX-1 LLC, together with a copy of such Mortgage Noteformerly known as [previous name]”),.
(B) The original or a copy of each and every executed predecessor note to the Mortgage Note and the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any and all historic amendments, modifications, spreaders, splitters, restatements and/or consolidations of such note(s), reflecting a complete, unbroken chain from the original lender to the applicable Originator (if any).
(C) An original or copy of any guarantee executed in connection with the Mortgage Note (if any).
(D) The original or certified (either by the county recorder or as set forth in the proviso to Section 7(b) and the last paragraph of this Section 7) copy of the Mortgage with evidence of recording thereon.
(E) The original or certified (either by the county recorder or as set forth in the proviso to Section 7(b) and the last paragraph of this Section 7) copy of each and every executed predecessor mortgage to the Mortgage, including without limitation the original or certified copy of any and all historic amendments, modifications, spreaders, splitters, restatements and/or consolidations of such mortgage(s), reflecting a complete, unbroken chain from the original lender to the applicable Originator (if any).
(F) The originals or certified (either by the county recorder or as set forth in the proviso to Section 7(b) and the last paragraph of this Section 7) copies of all assumption, modification, consolidation or extension agreements with evidence of recording thereon (if applicable).
(G) The original Assignment of Mortgage in [___________________] for each Purchased Asset, in form and substance acceptable for recording in the relevant jurisdiction, and in form and substance otherwise acceptable to Buyer and signed in the name of Seller (in the event that the Purchased Asset was acquired by Seller in a merger, the signature must be in the following form: “FS CREIT Finance NTX-1 LLC, successor by merger to [name of predecessor]”; or in the event that the Purchased Asset was acquired or originated by Seller while doing business under another name, the signature must be in the following form: “FS CREIT Finance NTX-1 LLC, formerly known as [previous name]”).
(H) The originals or copies of all intervening assignments of the Mortgage showing mortgage, if any, evidencing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment title from the applicable Originator to Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon thereon.
(I) An original or copy of the attorney’s opinion of title and abstract of title or the original or copy of the mortgagee title insurance policy (including all applicable endorsements), or if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s mortgagee title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,the irrevocable pro forma marked commitment to issue the same (including all applicable endorsements).
(J) An original or copy of any security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Asset (if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,any).
(K) an An original or copy of any guaranty assignment of payment under such Mortgage Loan,leases and rents, if any, together with all intervening assignments of assignment of leases and rents, if any, evidencing a complete chain of title from the applicable Originator to Seller, with evidence of recording thereon.
(L) an The original assignment of any environmental indemnity,assignment of leases and rents in [___________________________] for each Purchased Asset (if applicable), in form and substance acceptable for recording in the relevant jurisdiction, and in form and substance otherwise acceptable to Buyer and signed in the name of Seller (in the event that the Purchased Asset was acquired by Seller in a merger, the signature must be in the following form: “FS CREIT Finance NTX-1 LLC, successor by merger to [name of predecessor]”; or in the event that the Purchased Asset was acquired or originated by Seller while doing business under another name, the signature must be in the following form: “FS CREIT Finance NTX-1 LLC, formerly known as [previous name]”).
(M) an original A copy of any escrow agreements,
(N) copies of any the UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller statements, and UCC-3 assignment financing statements in favor of the applicable Sellerall necessary UCC continuation statements, in each case (unless the particular item has not been returned from the applicable filing office)case, with evidence of filing indicated thereon or unrecorded copies thereof certified by Seller that such financing statements have been sent for filing, and UCC assignments prepared by Seller in blank, which UCC assignments shall be in form and substance acceptable for filing in the applicable filing office,jurisdictions.
(N) An original or copy of the environmental indemnity agreement or similar guaranty or indemnity (if any).
(O) UCC-3 assignment financing statements from An original or copy of the applicable Seller loan agreement, intercreditor agreement, lockbox agreement, cash management agreement, deposit account agreement, deposit account control agreement and construction contract (in blank,each case, if any).
(P) an An original omnibus assignment to [___________________________] signed in the name of any subordination agreement or intercreditor agreement,Seller, of all other agreements and instruments relating to the Purchased Asset.
(Q) A copy of the disbursement letter or settlement statement from the Mortgagor (or title company) to the original mortgagee (if any).
(R) A copy of the Mortgage Note Survey (if any).
(S) A copy of the zoning report (if any).
(T) A copy of the Mortgagor’s, and, if applicable, any guarantor’s opinion of counsel (if any).
(U) A copy of any assignment of permits, contracts and other material agreements (if any).
(V) A copy of the collateral assignment of interest rate cap agreement or Mortgage was executed an interest rate swap or similar arrangement (if any).
(W) The original of all letters of credit issued and outstanding as security for such Purchased Asset (if any), with any modifications, amendments or endorsements necessary to permit Buyer to draw upon them when and if it is contractually permitted to do so pursuant to a this Agreement (if any).
(X) Copies or originals of any power of attorney related to the Purchased Asset.
(Y) Copies or originals (including recorded copies or originals, as applicable) of any subordination, non-disturbance and attornment agreements or similar instruments related to the Mortgaged Property.
(Z) Copies or originals of any ground lease and/or ground lease estoppels related to the Mortgaged Property.
(AA) Copies or originals of all other material letters, agreements, instruments, certificates or other instrument that authorized documents relating to the Purchased Asset or empowered such person to sign, an original affecting the rights (including without limitation the security interests) of such power of attorney or other instrument, andany holder thereof.
Appears in 1 contract
Samples: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder, including the amount of any Repurchase Price or Payment Due, shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Collection Account, not later than 5:00 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for not later than 5:00 p.m., New York City time, simultaneously with the delivery to Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction. Seller hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including Custodian) without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IVPurchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items. Upon Buyer's request, the parties shall cause each MERS Designated Loan to be noted by MERS to be held for Buyer's benefit.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including Custodian) (i) the CustodianMERS number for each MERS Designated Loan, (ii) the Mortgage Files, (iii) the Mortgage Loan Schedule and (iv) the Electronic Tracking Agreement.
(d) Any Mortgage Files retained by Seller are and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified be held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of or its designee or the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) related Servicer shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing File not delivered to Buyer or its designee (including Custodian). The possession of any items constituting the Mortgage File by Seller or its designee is at the will of Buyer, and such retention and possession by Seller or its designee is in a complete chain of assignment custodial capacity only. Each Mortgage File retained or held by Seller or its designee shall be segregated on Seller's or its designee's books and records from the originator other assets of Seller or its designee and the books and records of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to Buyer. Seller or its designee shall release its custody of any items constituting the Mortgage File only in accordance with written instructions from Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of Purchased Asset by Seller. The related Servicer's custodial responsibilities shall be as set forth in the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andServicing Agreement.
Appears in 1 contract
Samples: Master Repurchase Agreement (Hanover Capital Mortgage Holdings Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, ownership of the Purchased Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) [Intentionally Omitted.]
(c) [Intentionally Omitted.]
(d) [Intentionally Omitted.]
(e) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV; provided, that notwithstanding the foregoing, upon request of the Seller, the Buyer in its sole discretion may elect to permit the Seller to make such delivery by not later than the third (3rd) Business Day after the related Purchase Date, so long as the Seller causes an Acceptable Attorney to deliver to the Buyer and the Custodian an Attorney’s Bailee Letter on or prior to such Purchase Date. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectively, the “Purchased Loan File”) ), pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided:
(i) The original Mortgage Note bearing all intervening endorsements, endorsed “Pay to the order of without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized Person (in the event that the applicable Seller shall deliver Purchased Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Repurchase Agreement $400MM Facility Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Loan was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], formerly known as [previous name]”).
(ii) The original of any guarantee executed in connection with the Mortgage Note (if any).
(iii) The original Mortgage with evidence of recording thereon, or a copy thereof together with an officer’s certificate of an Authorized Representative of such Seller certifying that any such represents a true and correct copy of the original and that such original has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(iv) The originals of all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or copies thereof together with an officer’s certificate of documents delivered Seller certifying that such represent true and correct copies of the originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of such documents:the jurisdiction where the Mortgaged Property is located.
(Av) the The original executed Assignment of Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recoursein blank for each Purchased Loan, in blank form and otherwise showing a complete, unbroken chain of endorsement from substance acceptable to Buyer and signed in the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor name of the Buyer for any costsLast Endorsee (in the event that the Purchased Loan was acquired by the Last Endorsee in a merger, losses the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Loan was acquired or damages arising from originated while doing business under another name, the failure to deliver signature must be in the original Mortgage Notefollowing form: “[Last Endorsee], together with a copy of such Mortgage Noteformerly known as [previous name]”),.
(Bvi) the original or (to the extent that such original is retained by the relevant public recording office) a copy The originals of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any all intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) mortgage with evidence of recording indicated thereon thereon, or copies thereof together with an officer’s certificate of Seller certifying that such represent true and correct copies of the originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(vii) The original attorney’s opinion of title and abstract of title or the original mortgagee title insurance policy, or if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s mortgagee title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding the irrevocable marked commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,the same.
(Iviii) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an The original of any guaranty of payment under such Mortgage security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Loan,.
(Lix) an The original assignment of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller leases and UCC-3 assignment financing statements in favor of the applicable Sellerrents, in each case (unless the particular item has not been returned from the applicable filing office)if any, with evidence of recording thereon, or a copy thereof together with an officer’s certificate Repurchase Agreement $400MM Facility of Seller, certifying that such copy represents a true and correct copy of the original that has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(x) The originals of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recording thereon.
(xi) A copy of the UCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing indicated thereon or copies thereof certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller to have been sent for filing, and UCC assignments executed by Seller in blank,, which UCC assignments shall be in form and substance acceptable for filing.
(Pxii) An environmental indemnity agreement (if any).
(xiii) An omnibus assignment in blank (if any).
(xiv) A disbursement letter from the Mortgagor to the original mortgagee (if any).
(xv) Mortgagor’s certificate or title affidavit (if any).
(xvi) A survey of the Mortgaged Property (if any) as accepted by the title company for issuance of the Title Policy.
(xvii) A copy of the Mortgagor’s opinion of counsel (if any).
(xviii) An assignment of permits, contracts and agreements (if any). In addition, with respect to each Purchased Loan, the Seller shall deliver an instruction letter in the form of Exhibit IX hereto from the Seller to either the Mortgagor or the borrower under such Purchased Loan or the servicer with respect to such Purchased Loan, instructing the Mortgagor, the borrower or the servicer, as applicable, to remit all sums required to be remitted to the holder of such Purchased Loan under the loan documents to the Depository for deposit in the Cash Management Account or as otherwise directed in a written notice signed by Seller and Buyer. From time to time, Seller shall forward to the Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any subordination agreement such other documents, the Custodian shall hold such other documents as Buyer shall request from time to time. With respect to any documents which have been delivered or intercreditor agreement,
are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with a certificate of an Authorized Representative of the Seller certifying that such copy is a true, correct and complete copy of the original, which has Repurchase Agreement $400MM Facility been transmitted for recordation. Seller shall deliver such original documents to the Custodian promptly when they are received. With respect to all of the Purchased Loans delivered by Seller to Buyer or its designee (Qincluding the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit V attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to (i) if complete and record the Assignment of Mortgage, (ii) complete the endorsement of the Mortgage Note and (iii) take such other steps as may be reasonably necessary or Mortgage was executed pursuant desirable to enforce Buyer’s rights against such Purchased Loans and the related Purchased Loan Files and the Servicing Records. Buyer shall deposit the Purchased Loan Files representing the Purchased Loans, or direct that the Purchased Loan Files be deposited directly, with the Custodian. The Purchased Loan Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Loan Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a power copy of attorney the Purchased Loan File and the originals of the Purchased Loan File not delivered to Buyer or other instrument that authorized its designee. The possession of the Purchased Loan File by Seller or empowered its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Loan, and such person retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to signreflect clearly the sale of the related Purchased Loan to Buyer. Seller or its designee (including the Custodian) shall release its custody of the Purchased Loan File only in accordance with written instructions from Buyer, an original unless such release is required as incidental to the servicing of such power the Purchased Loans, is in connection with a repurchase of attorney any Purchased Loan by Seller or other instrument, andas otherwise required by law.
Appears in 1 contract
Samples: Master Repurchase Agreement (CBRE Realty Finance Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer; Account No. GLA 111569, account name SER, Bank of New York, ABA No. 000000000, Attn: Xxxx Xxxxxxx, not later than 5 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for as set forth in Section 11 of the Custodial and Disbursement Agreement not later than 6 p.m., New York City time, simultaneously with the delivery to Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction. Each of Encore, ECC and all feesBravo hereby sells, costs transfers, conveys and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including Custodian) without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of each of Encore, ECC and Bravo, as applicable, in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest of Seller in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including Custodian) (i) the Custodian, Custodial Identification Certificate and shall cause (ii) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Disbursement Agreement.
(Ad) the original executed Each Mortgage Note together with any applicable riders, endorsed on File relating to a Purchased Asset that is not delivered to Buyer or its face or designee (including Custodian) is and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan File not delivered to the applicable Seller,
Buyer or its designee (C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording officeincluding Custodian),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions . The possession of the Mortgage have been modifiedFile by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in each case (unless the particular item has not been returned a custodial capacity only. Each Mortgage File retained or held by Seller or its designee shall be segregated on Seller’s books and records from the applicable recording office) with evidence other assets of recording indicated thereon if Seller or its designee and the instrument being modified is a recordable document,
(G) originals books and records of all modification agreements in those instances in which Seller or its designee shall be marked appropriately to reflect clearly the terms sale of the related Purchased Asset to Buyer. Seller or provisions its designee shall release its custody of the Mortgage Note have been modified,
(H) File only in accordance with written instructions from Buyer, unless such release is required as incidental to the original policy servicing of the Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for the Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to the Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each the sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased each Mortgage Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "MORTGAGE FILE"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements, endorsed on its face or by allonge attached thereto, "Pay to the order of ________ without recourse, and without representation or warranty, express or implied" and signed in blank and otherwise showing the name of the last endorsee (the "LAST ENDORSEE") by an authorized officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a completemerger, unbroken chain the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of endorsement from predecessor]"; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(or, if such ii) the original of any guarantee executed in connection with the Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,or copies certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, the commitment or binder to issue the same; and
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any).
(e) Intentionally deleted.
(f) With respect to all of the Mortgage Loans delivered by Seller to Buyer or its designee (including the Custodian), Seller shall execute an irrevocableomnibus power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, binding commitment (which complete the endorsement of the Mortgage Note and take such other steps as may be an agreement necessary or desirable to provide enforce Buyer's rights against such Mortgage Loans, the same pursuant to binding escrow instructions executed by an authorized representative of related Mortgage Files and the title company) to issue such title insurance policy,Servicing Records.
(Ig) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,
Purchased Mortgage Loan to Buyer. Seller or its designee (Kincluding the Custodian) an original shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Purchased Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a power of attorney, substantially in the difference between form attached as Exhibit II-2 hereto, allowing Seller to administer, operate and service such Purchased Assets. Provided that no Event of Default shall have occurred and be continuing, the power of attorney (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitationsubject to the terms of this Agreement, reasonable attorneys’ fees the exercise of any voting or similar rights by Seller) shall be binding upon Buyer and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.Buyer’s successors and assigns. [NEWYORK 3032673_23]
(b) On or before such With respect to each Table Funded Purchased Asset, Seller shall cause Bailee to deliver to Buyer by no later than 1:00 p.m. (New York time), on the Purchase Date, by facsimile a true and complete copy of the related Mortgage Note or Participation Certificate (as applicable), the Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement. In connection with the sale of each Purchased Asset, not later than 1:00 p.m. (New York time), two (2) Business Days prior to the related Purchase Date (or with respect to a Table Funded Purchased Asset not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the applicable Purchase Date), Seller shall deliver or cause Bailee to be delivered deliver (with a copy to Buyer or its designee Buyer) and release to Custodian (together with the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianAsset File Checklist), and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning (or in the case of a Table Funded Purchased Asset, not later than two (2) Business Days following the receipt by Custodian) confirming the receipt of, the following documents original (or where indicated below, copied) documents, to the extent applicable (collectively, the “Loan FilePurchased Asset Documents”) pertaining ), with respect to each of the Purchased Loans Asset identified in the Custodial Delivery Purchased Asset File Checklist delivered therewith; provided:
(i) the original Mortgage Note bearing all intervening endorsements, endorsed “Pay to the order of _________ without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized Person of the Last Endorsee (in the event that the Purchased Asset was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Asset was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”) or a lost note affidavit in a form reasonably approved by Buyer, with a copy of the applicable Seller shall deliver Mortgage Note attached thereto;
(ii) the original loan agreement and guaranty, if any, executed in connection with the Purchased Asset;
(iii) the original Mortgage with evidence of recording thereon, or a certificate true and correct copy of an Authorized Representative the original that has been submitted for recordation in the appropriate governmental recording office of such Seller certifying that any copies the jurisdiction where the Mortgaged Property is located;
(iv) the originals of documents delivered represent all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or true and correct copies of the originals that have each been submitted for recordation in the appropriate governmental recording office of such documents:the jurisdiction where the Mortgaged Property is located;
(Av) the original executed Assignment of Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recoursein blank for each Purchased Asset, in blank form and otherwise showing substance acceptable for recording and signed in the name of the Last Endorsee (in the event that the Purchased Asset was acquired by the Last Endorsee in a completemerger, unbroken chain the signature must be in the following form: “[Last Endorsee], successor by merger to [name of endorsement from predecessor]”; in the initial lender event that the Purchased Asset was acquired or originated while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”);
(vi) the originals of all intervening assignments of mortgage (if any) with evidence of recording thereon, or copies thereof;
(vii) the original Title Policy or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage NoteTitle Policy has not been issued, together with a copy of such Mortgage Note),the irrevocable marked commitment to issue the same; [NEWYORK 3032673_23]
(Bviii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Asset;
(to ix) the extent original Assignment of Leases, if any, with evidence of recording thereon, or a true and correct copy of the original that such original has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is retained by located;
(x) the relevant public originals of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recording officethereon, or copies thereof;
(xi) a copy of the MortgageUCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing thereon or copies thereof together with an evidence that such UCC financing or continuation statements have been sent for filing, and UCC assignments in blank, which UCC assignments shall be in form and substance acceptable for filing in the applicable jurisdictions;
(xii) the original environmental indemnity agreement or similar guaranty or indemnity, whether stand-alone or incorporated into the applicable loan documents (if any);
(xiii) the original omnibus assignment in blank or such other documents necessary and sufficient to transfer to Buyer all of Seller’s right, title and interest in and to the extent that such original is retained Purchased Asset (if any);
(xiv) a Survey of the Mortgaged Property (if any) as accepted by the relevant public recording officetitle company for issuance of the Title Policy;
(xv) a copy of any intervening assignments all servicing agreements and Servicing Records related to such Purchased Asset, which Seller shall deliver to Servicer (with a copy to Buyer);
(xvi) a copy of the Mortgage showing Mortgagor’s opinions of counsel;
(xvii) in the case of a complete chain Purchased Asset that is a Participation Interest, the original Participation Certificate evidencing such Participation Interest together with an assignment in blank;
(xviii) in the case of a Purchased Asset that is a Participation Interest, the participation agreement and any other documents evidencing such Participation Interest;
(xix) an assignment from the originator of such Mortgage Loan any management agreements, permits, contracts and other material agreements (if any);
(xx) reports of UCC, tax lien, judgment and litigation searches as requested by Buyer, conducted by search firms reasonably acceptable to Buyer with respect to the applicable Seller,Purchased Asset, Seller and the related underlying obligor, such searches to be conducted in each location Buyer shall reasonably designate and such reports reasonably satisfactory to Buyer;
(Cxxi) the original or a copy of the intercreditor or co-lender agreement (if any) executed in connection with the Purchased Asset to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,subject borrower, or an affiliate thereof, has encumbered its assets with senior, junior or similar financing, whether mortgage financing or mezzanine loan financing; [NEWYORK 3032673_23]
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording officexxii) copies of all modification agreements documents relating to the formation and organization of the related obligor under such Purchased Asset, together with all consents and resolutions delivered in those instances connection with such obligor’s obtaining such Purchased Asset; and
(xxiii) all other material documents and instruments evidencing, guaranteeing, insuring, securing or modifying such Purchased Asset, executed and delivered in connection with, or otherwise relating to, such Purchased Asset, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property; provided that if Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under the provisions above (excluding the Mortgage Note and Assignment of Mortgage, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and, unless waived by Buyer, an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original. Seller shall then, (A) use commercially reasonable efforts to obtain and deliver the original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using commercially reasonable efforts to obtain the original), (B) after the expiration of such best efforts period, deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document and (C) thereafter have no further obligation to deliver the related original document.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms or provisions of the Mortgage this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been modified, in each case (unless the particular item has delivered or are being delivered to recording offices for recording and have not been returned from to Seller in time to permit their delivery hereunder at the applicable recording office) time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with evidence of recording indicated thereon if the instrument being modified an Officer’s Certificate certifying that such copy is a recordable document,
true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (Gincluding Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit II-1 attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note or Participation Certificate (as applicable) and (iii) take such other steps as may be necessary or desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records; which power Buyer agrees will only be exercised during the continuance of an Event of Default. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee (including Custodian) is and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Purchased Asset File and the originals of all modification agreements the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in those instances in which a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the terms or provisions and conditions of this [NEWYORK 3032673_23] Agreement, of the Mortgage Note have been modified,
related Purchased Asset to Buyer. Seller or its designee (Hincluding Custodian) shall release its custody of the original policy Purchased Asset File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy of any ground lease Buyer in form and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andsubstance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (NorthStar Real Estate Income II, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by each Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Agent, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 3:00 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer the Buyers or its their designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for by the Agent on behalf of the Buyers to the Seller, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 6:00 p.m., New York City time, simultaneously with the delivery by the Custodian to the Agent of the Trust Receipts with respect to the Purchased Loan(sAssets relating to each Transaction. The Seller hereby sells, transfers, conveys and assigns to the Buyers or their designee (including the Custodian), subject to the terms of this Agreement, all the right, title and interest of the Seller in and to the Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in In connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to the Agent or its designee (including the Custodian, and shall cause ) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery Agreement.
(d) Any Mortgage Asset Files not delivered therewith; provided, that to the applicable Agent or its designee (including the Custodian) are and shall be held in trust by the Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies or its designee for the benefit of the originals of such documents:
(A) Buyers as the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable owner thereof. The Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgageMortgage Asset File and the originals of the Mortgage Asset File not delivered to the Agent or its designee (including the Custodian). The possession of the Mortgage Asset File by the Seller or its designee is at the will of the Agent for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by the Seller or (its designee is in a custodial capacity only. Each Mortgage Asset File retained or held by the Seller or its designee shall be segregated on the Seller’s books and records, to the extent that such original is retained by possible, from the relevant public recording office) a copy other assets of any intervening assignments the Seller or its designee and the books and records of the Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to the Buyers. The Seller or its designee shall release its custody of the Mortgage showing a complete chain of assignment Asset File only in accordance with written instructions from the originator of Agent, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified Purchased Asset by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andSeller.
Appears in 1 contract
Samples: Master Repurchase Agreement (Gramercy Capital Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan (or with respect to item (vii) below within five Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to ------------- each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements, endorsed on its face or by allonge attached thereto"Pay to the order of , without recourse" and signed ------------ in the name of the last endorsee (the "Last Endorsee") by an authorized ------------- officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in blank and otherwise showing a completethe following form: "[the Last Endorsee], unbroken chain successor by merger to [name of endorsement from predecessor]"; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(or, if such ii) the original of any guarantee executed in connection with Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,or copies certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, the commitment or binder to issue the same; and
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any).
(e) With respect to each Mortgage Loan delivered by Seller to Buyer or its designee (including the Custodian), Seller shall execute an irrevocableomnibus power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, binding commitment (which complete the endorsement of the Mortgage Note and take such other steps as may be an agreement necessary or desirable to provide enforce Buyer's rights against such Mortgage Loans, the same pursuant to binding escrow instructions executed by an authorized representative of related Mortgage Files and the title company) to issue such title insurance policy,Servicing Records.
(If) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(g) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of Seller or its designee shall be marked appropriately to reflect clearly the inclusion of the related loan agreement,
Purchased Mortgage Loan in a Transaction. Seller or its designee (Kincluding the Custodian) an original shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Purchased Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (First Alliance Corp /De/)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 144-089059, account name: Gestation, ABA No. 000-000-000, not later than 3:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable Seller (or as otherwise directed by the Seller): Account No. 2080000697499, specified in for the Confirmation account of HomeBanc Mortgage Corporation, Wachovia Bank, National Association, ABA No. 000000000, Attn: Treasury Dept., not later than 5:00 p.m. New York City time, simultaneously with the delivery to the Buyer of the Purchased Mortgage Loans relating to such Transaction of the difference between (i) the Purchase Price for each Transaction. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction of the difference between (i) Transaction. On the Purchase Price Date for the first Transaction, Buyer will provide Seller with a power of attorney, substantially in the form attached as Exhibit IV-2 hereto, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Loans. Provided that no Event of Default shall have occurred and all feesbe continuing, costs the power of attorney shall be binding upon Buyer and expenses including, without limitation, reasonable attorneys’ fees Buyer’s successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such With respect to each Table Funded Purchased Loan, Seller shall cause the Bailee to deliver to the Buyer by no later than 1:00 p.m. (New York time), on the Purchase Date, by facsimile a true and complete copy of the related promissory note, the Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement. In connection with the sale of each Purchased Loan, not later than 1:00 p.m. (New York time), two (2) Business Days prior to the related Purchase Date (or with respect to a Table Funded Purchased Loan not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the applicable Purchase Date), Seller shall deliver or cause Bailee to be delivered deliver (with a copy to Buyer or its designee Buyer) and release to the Custodian (together with the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianCertificate ), and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning (or in the case of a Table Funded Purchased Loan, not later than two (2) Business Days following the receipt of, by the Custodian) confirming the receipt of the following documents original (or where indicated, copied) documents, to the extent applicable (collectively, the “Purchased Loan File”) ), pertaining to each of the Purchased Loans identified in the Custodial Delivery Certificate delivered therewith; provided:
(i) With respect to each Purchased Loan that is a Mortgage Loan, the following documents, as applicable and subject to clause (ii) below:
(A) The original Mortgage Note bearing all intervening endorsements, endorsed “Pay to the order of without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized Person of the Last Endorsee (in the event that the Purchased Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Loan was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”) or a lost note affidavit in a form reasonably approved by Buyer, with a copy of the applicable Mortgage Note attached thereto.
(B) The original or a copy of the loan agreement and the guarantee, if any, executed in connection with the Purchased Loan.
(C) The original Mortgage with evidence of recording thereon, or a copy thereof together with an Officer’s Certificate of Seller shall deliver a certificate or certification of an Authorized Representative of such Seller Bailee certifying that any such copy represents a true and correct copy of the original and that such original has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(D) The originals of all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or copies thereof together with an Officer’s Certificate of documents delivered Seller or certification of Bailee certifying that such copies represent true and correct copies of the originals of and that such documents:
(A) originals have each been submitted for recordation in the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor appropriate governmental recording office of the Buyer for any costs, losses or damages arising from jurisdiction where the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original Mortgaged Property is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),located.
(E) an The original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller Mortgage in blank for each Purchased Loan, in form and substance acceptable for recording and signed in recordable form the name of the Last Endorsee (except for missing recording information not yet available if in the instrument being assigned has not been returned from event that the applicable recording officePurchased Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Loan was acquired or originated while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”),.
(F) The originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions intervening assignments of the Mortgage have been modified, in each case mortgage (unless the particular item has not been returned from the applicable recording officeif any) with evidence of recording indicated thereon if thereon, or copies thereof together with an Officer’s Certificate of Seller or certification of Bailee certifying that such copies represent true and correct copies of the instrument being modified originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is a recordable document,located.
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the The original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements Title Policy or, if such policy the original Title Policy has not been issued, an irrevocable, binding the original irrevocable marked commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,the same.
(H) The original of any security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Loan.
(I) The original Assignment of Leases, if any, with evidence of recording thereon, or a copy thereof together with an Officer’s Certificate of any ground lease Seller or certification of Bailee, certifying that such copy represents a true and any ground lessor estoppels,correct copy of the original that has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(J) The originals of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recording thereon, or copies thereof together with an Officer’s Certificate of Seller or certification of Bailee certifying that such Mortgage Loan contains a Future Advance Obligation, an original copies represent true and correct copies of the related loan agreement,originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(K) an original A copy of any guaranty the UCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of payment under filing thereon or copies thereof together with evidence that such Mortgage Loan,UCC financing or continuation statements have been sent for filing, and UCC assignments in blank, which UCC assignments shall be in form and substance acceptable for filing in the applicable jurisdictions.
(L) an The original of any environmental indemnity agreement or similar guaranty or indemnity,, whether stand-alone or incorporated into the applicable loan documents (if any).
(M) an The original copy omnibus assignment in blank or such other documents necessary and sufficient to transfer to Buyer all of any escrow agreements,Seller’s right, title and interest in and to the Purchased Loan (if any).
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan Mortgagor’s certificate or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case title affidavit (unless the particular item has not been returned from the applicable filing officeif any), with evidence of filing indicated thereon or certified by the applicable filing office,.
(O) UCC-3 assignment financing statements from A Survey of the applicable Seller in blank,Mortgaged Property (if any) as accepted by the title company for issuance of the Title Policy.
(P) an original A copy of any subordination agreement or intercreditor agreement,the Mortgagor’s opinions of counsel.
(Q) An assignment of any management agreements, permits, contracts and other material agreements (if any).
(R) The original or a copy of the Mortgage Note intercreditor or Mortgage was co-lender agreement (if any) executed in connection with the Purchased Loan to the extent the subject borrower, or an affiliate thereof, has encumbered its assets with senior, junior or similar financing, whether mortgage financing or mezzanine loan financing.
(S) Copies of all documents relating to the formation and organization of the related obligor under such Purchased Loan, together with all consents and resolutions delivered in connection with such obligor’s obtaining such Purchased Loan.
(T) All other material documents and instruments evidencing, guaranteeing, securing or modifying such Purchased Loan, executed and delivered in connection with, or otherwise relating to, such Purchased Loan, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property.
(ii) If Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under the provisions above, Seller shall deliver a photocopy thereof and, unless waived by Buyer, an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original. Seller shall then, (1) use its best efforts to obtain and deliver the original document within 180 days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole good faith discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using its best efforts to obtain the original), (2) after the expiration of such best efforts period, deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document and (3) thereafter have no further obligation to deliver the related original document.
(c) From time to time, Seller shall forward to the Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, the Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to the Custodian promptly when they are received. With respect to all of the Purchased Loans delivered by Seller to Buyer or its designee (including the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit IV-1 attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to, during the continuance of an Event of Default, (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note and (iii) take such other steps as may be necessary or other instrument desirable to enforce Buyer’s rights against any Purchased Loans and the related Purchased Loan Files and the Servicing Records. Buyer shall deposit the Purchased Loan Files representing the Purchased Loans, or cause the Purchased Loan Files to be deposited directly, with the Custodian to be held by the Custodian on behalf of Buyer. The Purchased Loan Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Loan Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Purchased Loan File and any originals of the Purchased Loan File not delivered to Buyer or its designee. The possession of the Purchased Loan File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Loan, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the terms and conditions of this Agreement, of the related Purchased Loan to Buyer. Seller or its designee (including the Custodian) shall release its custody of the Purchased Loan File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Loans or is in connection with a repurchase of any Purchased Loan by Seller or is pursuant to the order of a court of competent jurisdiction.
(d) Unless an Event of Default shall have occurred and be continuing, Seller shall exercise all voting, consent, corporate and decision-making rights with respect to the Purchased Loans, provided that authorized Seller shall not effectuate any Significant Modification of any Purchased Loan without Buyer’s prior written consent thereto, which consent shall not be unreasonably withheld, conditioned or empowered such person delayed. Buyer agrees to signuse commercially reasonable efforts to respond to any requests for consent by Seller pursuant to this Section 7(d) in an expeditious manner. Upon the occurrence and during the continuation of an Event of Default, an original Buyer shall be entitled to exercise all voting, consent, corporate, and decision-making rights with respect to the Purchased Loans without regard to Seller’s instructions.
(e) On the date of such power this Agreement, Buyer shall have received all of attorney or other instrumentthe following items and documents, andeach of which shall be satisfactory to Buyer in form and substance:
Appears in 1 contract
Samples: Master Repurchase Agreement (Starwood Property Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan which is not a Wet Ink Mortgage Loan (or with respect to item (vii) below within five Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements, endorsed on its face or by allonge attached thereto, "Pay to the order of ________ without recourse, " and signed in blank and otherwise showing a complete, unbroken chain the name of endorsement from the initial lender last endorsee (or, if the "Last Endorsee") by an authorized officer of such entity;
(ii) the original of any guarantee executed in connection with the Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,or copies certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, if any, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, the commitment or binder to issue the same; and
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any).
(e) In connection with each sale, transfer, conveyance and assignment with respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, on or prior to the fifth Business Day following each Purchase Date, Seller shall deliver or cause to be delivered to the Custodian a complete Mortgage File. Further, if requested by Buyer, on the Purchase Date with respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, Seller shall fax an irrevocableexecuted copy of the respective Mortgage Note to the Custodian. On the date on which the Buyer receives a Trust Receipt from the Custodian certifying that a complete Mortgage File with respect to a Wet Ink Mortgage Loan is in the possession of the Custodian, binding commitment such Wet Ink Mortgage Loan be deemed a standard Mortgage Loan (which and no longer a Wet Ink Mortgage Loan) for all purposes hereunder including, without limitation, determination of the Pricing Spread and compliance with subsection (aaa) of Exhibit V.
(f) With respect to all of the Mortgage Loans delivered by Seller to Buyer or its designee (including the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, complete the endorsement of the Mortgage Note and take such other steps as may be an agreement necessary or desirable to provide enforce Buyer's rights against such Mortgage Loans, the same pursuant to binding escrow instructions executed by an authorized representative of related Mortgage Files and the title company) to issue such title insurance policy,Servicing Records.
(Ig) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,
Purchased Mortgage Loan to Buyer. Seller or its designee (Kincluding the Custodian) an original shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Purchased Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (Novastar Financial Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 3:00 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for as set forth in Article V of the Custodial Agreement not later than 6:00 p.m., New York City time, simultaneously with the delivery to the Custodian of the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable Assets relating to Buyer pursuant to Section 27 or Section 30(d) in connection with such each Transaction.
(b) On or before such Purchase Date, the . The applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodial Delivery Custodian), subject to the terms of this Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to Buyer or its designee (including the Custodian, and shall cause ) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Agreement.
(Ad) Any Mortgage Asset Files not delivered to Buyer or its designee (including the original executed Mortgage Note together with any applicable riders, endorsed on its face or Custodian) are and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the benefit of Buyer as the owner thereof. The applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgageMortgage Asset File and the originals of the Mortgage Asset File not delivered to Buyer or its designee (including the Custodian). The possession of the Mortgage Asset File by the applicable Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by such Seller or (its designee is in a custodial capacity only. Each Mortgage Asset File retained or held by the applicable Seller or its designee shall be segregated on such Seller's books and records, to the extent that possible, from the other assets of such original is retained by Seller or its designee and the relevant public recording office) a copy books and records of any intervening assignments such Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to Buyer. The applicable Seller or its designee shall release its custody of the Mortgage showing a complete chain of assignment Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if Purchased Asset by such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (Capital Lease Funding Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Sellers hereunder shall be made in USActive 5531664.18 -42- Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Administrative Agent at the following account maintained by the Administrative Agent: JPMorgan Chase Bank, N.A. 1111 Xxxxxx, 12th Floor Mail Code TX2-F200 ABA: 000-000-000 Attention: Mortgage Banking Warehouse Services – Xxxxx Xxxx Phone: 000-000-0000 Account Number: 730141280 For Credit To: HB Corp. JPMorgan Chase Bank, N.A. 1111 Xxxxxx, 12th Floor Mail Code TX2-F200 ABA: 000-000-000 Attention: Mortgage Banking Warehouse Services – Xxxxx Xxxx Phone: 000-000-0000 Account Number: 730141298 For Credit To: HMC not later than 4:00 p.m. (Central time), on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Sellers acknowledge that they have no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including the Custodian) Administrative Agent for the benefit of the Buyers against the simultaneous transfer of the Purchase Price to an the following account of the applicable SellerSellers: Account No. 00113398359, specified in for the Confirmation account of HB Corp. and Subsidiaries and Account No. 00113207618 for HMC and Subsidiaries, JPMorgan Chase Bank, N.A., ABA No. 000000000, Attn: Mortgage Banking Warehouse Services – Xxxxx Xxxx, (the “Operating Account”) simultaneously with the delivery to the Administrative Agent for the benefit of the Buyers of the Purchased Mortgage Loans relating to such Transaction each Transaction. With respect to the Purchased Mortgage Loans being sold by a Seller on a Purchase Date, each Seller hereby sells, transfers, conveys and assigns to Administrative Agent for the benefit of the difference between (i) Buyers without recourse, but subject to the Purchase Price for terms of this Repurchase Agreement, all the right, title and interest of such Seller in and to the Purchased Loan(sMortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in In connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to Date, such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds hereunder shall be in immediately available funds.
(b) The Seller shall deliver to the Buyer a written funding certificate in the form of EXHIBIT IV attached hereto (a "FUNDING CERTIFICATE") one Business Day before the intended Purchase Date. On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans and related Collateral shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for as directed by Buyer. Seller, simultaneously with the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered delivery to Buyer or its designee (including the Custodial Delivery Custodian) of the Purchased Mortgage Loans relating to each Transaction, hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies, assignments of rents and leases and hedging agreements and instruments.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including the Custodian), and shall cause within two Business Days after the Custodian to deliver a Trust Receipt on the related Purchase Date concerning the receipt ofDate, the following documents (collectivelythe "MORTGAGE FILE"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements, endorsed on its face or by allonge attached thereto"Pay to the order of ____________, without recourse, " and signed in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor name of the Buyer for any costslast endorsee (the "LAST ENDORSEE") by an authorized officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, losses the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or damages arising from originated while doing business under another name, the failure to deliver signature must be in the original Mortgage Notefollowing form: "[insert name of the Last Endorsee], together with a copy of such Mortgage Note),formerly known as [previous name]";
(Bii) the original or of any guarantee executed in connection with the Mortgage Note (to if any);
(iii) the extent that such recorded original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to in the extent that event such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information has not yet available if the instrument being assigned has not been returned received from the applicable recording office),, a duplicate original of the Mortgage certified by an officer of the Seller as a true and correct copy of the Mortgage delivered for recording;
(Eiv) an the recorded original executed assignment of any Assignment of Leases all assumption, modification, consolidation or extension agreements with respect to the Mortgage (if any), or in the event such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information original has not yet available if the instrument being assigned has not been returned received from the applicable recording office),, duplicate originals of all assumption, modification, consolidation or extension agreements with respect to the Mortgage (if any) certified by an officer of the Seller as a true and correct copy thereof delivered for recording;
(Fv) the original Assignment of Mortgage in blank for each Mortgage Loan, in form and substance acceptable for recording and signed in the name of the Last Endorsee (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[insert name of the last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[insert name of the Last Endorsee], formerly known as [previous name]";
(vi) duplicate originals of all intervening assignments of mortgage (if any);
(vii) a duplicate original of the assignment of leases and rents (if any);
(viii) the original assignment of assignment of leases and rents (if any), from Seller in blank, in form and substance acceptable for recording;
(ix) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, file stamped and/or recorded UCC-1 Financing Statements or in each case (unless the particular item event such original has not yet been returned received from the applicable recording office) with evidence , duplicate originals of recording indicated thereon if such UCC-1 Financing Statements certified by an officer of the instrument being modified is Seller as a recordable document,true and correct copy thereof delivered for recording;
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(Hx) the original policy or certificate assignments of lender’s the UCC-1 Financing Statements in blank, in form and substance acceptable for filing;
(xi) the original mortgagee title insurance issued in connection with policy, or if the origination of such Mortgage Loan, together with its endorsements or, if such original mortgagee title insurance policy has not been issued, an irrevocablethe pro forma policy, binding the preliminary title report, binder or commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,insure;
(Ixii) a copy duplicate original of any ground lease and any ground lessor estoppels,security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage;
(Jxiii) if such with respect to a Mortgage Loan contains a Future Advance Obligationthat does not allow the Mortgagor to self-insure, an original binders and copies of related insurance policies with original insurance polices or certified copies thereof to be delivered within forty-five days of the related loan agreement,Purchase Date and with respect to all other Mortgages, original binders with respect to any insurance policies;
(Kxiv) binders with respect to any insurance policies or similar agreements insuring against losses resulting from any failure by a lessee of the Mortgaged Property to make any payment to the Mortgagor as a result of a casualty or condemnation or otherwise;
(xv) duplicate originals of any hedging agreement, instrument or confirmation as it relates to the Transaction;
(xvi) an original assignment to the Buyer of any such hedging agreement or instrument in form and substance acceptable to the Buyer unless previously delivered pursuant to this Agreement;
(xvii) any other documents, instruments or papers relating to the Mortgage Loans delivered by or on behalf of mortgagor; and
(xviii) an original of any guaranty of payment under such Mortgage Loan,Lease Enhancement Policy.
(Ld) an original With respect to each Purchased Mortgage Loan delivered by Seller to Buyer or its designee (including the Custodian), Seller shall execute irrevocable letters of instructions to the Servicer, substantially in the form of EXHIBIT III attached hereto.
(e) Buyer may deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with a designee acting in the capacity of bailee for Buyer. If the Mortgage Files are delivered to Buyer or its designee, Buyer or its designee shall during the term of this Agreement exercise reasonable and prudent care in the maintenance thereof. If the Mortgage Loan Files are delivered to Custodian, the Mortgage Files shall be maintained in accordance with the Custodial Agreement. Seller understands and agrees that the Custodian shall have no responsibility to Seller, including without limitation any responsibility to keep Seller informed of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements changes in favor of the originator status of such Mortgage Loan Files or in favor of any assignee prior to Buyer's instructions with respect thereto, except as explicitly set forth in the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andCustodial Agreement.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan which is not a Wet Ink Mortgage Loan (or with respect to item (vii) below within seven Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectively, collectively the “Loan Mortgage File”) ), pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements (or allonges), endorsed on its face or by allonge attached thereto“Pay to the order of , without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in blank and otherwise showing a completethe following form: “[the Last Endorsee], unbroken chain successor by merger to [name of endorsement from predecessor]”; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: “[the Last Endorsee], formerly known as [previous name]”);
(or, if such ii) the original of any guarantee executed in connection with the Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is or a recordable document,copy certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[the Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: “[the Last Endorsee], formerly known as [previous name]”);
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, the commitment or binder to issue the same; and
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any).
(e) In connection with each sale, transfer, conveyance and assignment, on or prior to the seventh Business Day following each Purchase Date with respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, Seller shall deliver or cause to be delivered to the Custodian a complete Mortgage File. On the date on which the Buyer receives a Trust Receipt from the Custodian certifying that a complete Mortgage File with respect to a Wet Ink Mortgage Loan is in the possession of the Custodian, such Wet Ink Mortgage Loan be deemed a standard Mortgage Loan (and no longer a Wet Ink Mortgage Loan) for all purposes hereunder, including, without limitation, determination of the Pricing Spread and compliance with subsection (zz) of Exhibit V.
(f) With respect to each Mortgage Loan delivered by Seller to Buyer or its designee (including the Custodian), Seller shall have executed an irrevocableomnibus power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, binding commitment (which complete the endorsement of the Mortgage Note and take such other steps as may be an agreement necessary or desirable to provide enforce Buyer’s rights against such Mortgage Loans, the same pursuant to binding escrow instructions executed by an authorized representative of related Mortgage Files and the title company) to issue such title insurance policy,Servicing Records.
(Ig) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,
Purchased Mortgage Loan to Buyer. Seller or its designee (Kincluding the Custodian) an original shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Purchased Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Investment Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, ownership of the Purchased Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and
(R) an original of any property management agreement executed in connection with the related Mortgaged Property.
(c) In addition, with respect to each Purchased Loan, if not expressly required pursuant to the Loan Documents or if the related Mortgagor has not already been instructed to make remittances to the Servicer, the applicable Seller shall deliver an instruction letter from the applicable Seller to the borrower under each Purchased Loan, instructing the borrower to remit all sums required to be remitted to the holder of the Purchased Loan under the related Loan Documents to the Servicer for deposit in the Applicable Servicer Account or to any other restricted account required pursuant to the applicable Loan Documents. If the borrower under any Purchased Loan remits any sums required to be remitted to the holder of such Purchased Loan under the related Loan Documents to any Seller or its Affiliate, such Seller shall, within two (2) Business Days after receipt thereof, (i) remit such sums (other than Underlying Purchased Loan Reserves) to the Depository for deposit in the Cash Management Account as set forth in Section 5 hereof or as otherwise directed in the written notice signed by such Seller and Buyer, and (ii) deliver (or cause Servicer to deliver) an additional instruction letter from such Seller or Servicer, as applicable, to the borrower under the applicable Purchased Loan, instructing the borrower to remit all sums required to be remitted to the holder of the Purchased Loan under the related Loan Documents to the Servicer for deposit in the Applicable Servicer Account or as otherwise directed in a written notice signed by the applicable Seller and Buyer.
(d) From time to time, each Seller shall forward to the Custodian additional original documents or additional copies of documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, the Custodian shall hold such other documents as Custodian shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to the applicable Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, such Seller shall deliver to Buyer a true copy thereof with an officer’s certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. The applicable Seller shall deliver such original documents to Buyer or its designee within five (5) Business Days after they are received. With respect to all of the Purchased Loans delivered by a Seller to Buyer or its designee (including the Custodian), the applicable Seller shall execute an omnibus power of attorney substantially in the form of Exhibit V, attached hereto irrevocably appointing Buyer its attorney- in-fact with full power to, during the continuance of an Event of Default, (i) complete and record all Assignments of Mortgage, (ii) complete the endorsements of the Mortgage Notes and (iii) take such other steps as may be reasonably necessary or desirable to enforce Buyer’s rights against such Purchased Loans and the related Loan Files and the Servicing Records. Buyer shall deposit the Loan Files representing the Purchased Loans, or direct that the Loan Files be deposited directly, with the Custodian. The Loan Files shall be maintained in accordance with the Custodial Agreement. Any Loan Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by the applicable Seller or their designees for the benefit of Buyer as the owner thereof. Sellers or their designees shall maintain a copy of the Loan File and the originals of the Loan Files not delivered to Buyer or its designee. The possession of the Loan Files by the Sellers or their designees is at the will of Buyer for the sole purpose of servicing the related Purchased Loans, and such retention and possession by the Sellers or their designees is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of the Sellers or their designees with respect to each Purchased Loan shall be marked appropriately to reflect clearly the interest of Buyer hereunder with respect to the related Purchased Loan. Each Seller or its designee (including the Custodian) shall release its custody of the Loan Files only in accordance with written instructions from Buyer and in accordance with the provisions of the Custodial Agreement, unless such release is required as incidental to the servicing of the Purchased Loans is in connection with a repurchase of any Purchased Loan by the applicable Seller or as otherwise required by law.
(e) Unless an Event of Default shall have occurred and be continuing, the applicable Seller shall exercise all voting, consent, corporate and decision-making rights with respect to the Purchased Loans, provided that no Seller shall enter into any amendment or modification, or grant any waivers under, any Loan Documents, to the extent any of same constitute a Material Modification, without Buyer’s prior written consent thereto, which consent may be given or withheld by Buyer in its sole and absolute discretion. Upon the occurrence and during the continuation of an Event of Default, Buyer shall be entitled to exercise all voting, consent, corporate, and decision-making rights with respect to the Purchased Loans without regard to any Seller Party’s instructions.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 3:00 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for by Buyer to Seller, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 6:00 p.m., New York City time, simultaneously with the delivery by the Custodian to the Buyer of the Trust Receipts with respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable Assets relating to Buyer pursuant to Section 27 or Section 30(d) in connection with such each Transaction.
(b) On or before such Purchase Date, the . The applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodial Delivery Custodian), subject to the terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including the Custodian, and shall cause ) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Agreement.
(Ad) Any Mortgage Asset Files not delivered to Buyer or its designee (including the original executed Mortgage Note together with any applicable riders, endorsed on its face or Custodian) are and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the benefit of Buyer as the owner thereof. The applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgageMortgage Asset File and the originals of the Mortgage Asset File not delivered to Buyer or its designee (including the Custodian). The possession of the Mortgage Asset File by the applicable Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by Seller or (its designee is in a custodial capacity only. Each Mortgage Asset File retained or held by the applicable Seller or its designee shall be segregated on Seller's books and records, to the extent that such original is retained by possible, from the relevant public recording office) a copy other assets of any intervening assignments Seller or its designee and the books and records of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to Buyer. The applicable Seller or its designee shall release its custody of the Mortgage showing a complete chain of assignment Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and. ARTICLE VIII
Appears in 1 contract
Samples: Acquisition Repurchase Agreement (Gramercy Capital Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery Form and the Custodial Delivery.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the form attached hereto as Exhibit IVConfirmation. Seller, simultaneously with the delivery to Buyer or its designee (including Custodian) of the Purchased Mortgage Loans relating to each Transaction, hereby sells, transfers, conveys and assigns to Buyer or its designee (including Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased each Mortgage Loan that is not a Wet Ink Mortgage Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery Form delivered therewith; provided:
(i) the original Mortgage Note bearing all intervening endorsements (or allonges), endorsed "Pay to the order of , without recourse" and signed in the name of the last endorsee (the "Last Endorsee") by an authorized officer (in the event that the applicable Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(ii) the original of any guarantee executed in connection with the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon or a copy certified by Seller, its agent or the title company on behalf of Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of have been sent for recording;
(iv) the originals of such documents:all assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller, its agent or the title company on behalf of Seller to have been sent for recording, if any;
(Av) the original executed assignment of Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender for each Mortgage Loan (or, if such original Mortgage Note has been lostLoan is and will be registered on the MERS System, an affidavit to showing MERS as the assignee of such effect from Mortgage, unless such Mortgage Loan is a MOM Loan, in which case no assignment of Mortgage shall be required), in form and substance acceptable for recording and signed in the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor name of the Buyer for any costslast endorsee thereof (in the event that the Mortgage Loan was acquired by the last endorsee in a merger, losses the signature must be in the following form: "[the last endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or damages arising from originated while doing business under another name, the failure to deliver signature must be in the original Mortgage Notefollowing form: "[the last endorsee], together with a copy of such Mortgage Noteformerly known as [previous name]"),;
(Bvi) the original or (to the extent that such original is retained by the relevant public recording office) a copy originals of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any all intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) mortgage with evidence of recording indicated thereon or copies certified by Seller to have been sent for recording, if the instrument being modified is a recordable document,any;
(Gvii) originals the original of all modification agreements any security agreement, chattel mortgage or equivalent document executed in those instances in which the terms or provisions of connection with the Mortgage Note have been modified,(if any);
(Hviii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, an irrevocable, binding the commitment or binder to issue the same (which may be an agreement marked by the title insurance company) and a certified copy of mortgage insurance, if applicable; and
(ix) the original power of attorney, if any, or a copy thereof certified by Seller to provide have been sent for recording, for any document described above.
(e) In connection with each sale, transfer, conveyance and assignment, with respect to each Mortgage Loan that is a Wet Ink Mortgage Loan, (x) on each Purchase Date, Seller shall cause the same pursuant related form of Custodial Delivery with all required documentation for each funded Mortgage Loan to binding escrow instructions executed by an authorized representative be delivered to Custodian and (y) on or prior to 4:00 p.m. (New York City time) on the seventh (7th) Business Day following each Purchase Date, Seller shall deliver or cause to be delivered to Custodian all of the title companydocuments required to be contained in the Mortgage File. On the date on which Buyer receives a Trust Receipt from Custodian certifying that all of the documents required to be contained in Mortgage File with respect to a Wet Ink Mortgage Loan are in the possession of Custodian, such Wet Ink Mortgage Loan be deemed a Dry Ink Mortgage Loan (and no longer a Wet Ink Mortgage Loan) to issue such title insurance policy,for all purposes hereunder, including determination of the Pricing Spread.
(If) With respect to each Mortgage Loan delivered by Seller to Buyer or its designee (including Custodian), Seller shall have executed an omnibus power of attorney substantially in the form of Exhibit VI attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, complete the endorsement of the Mortgage Note and take such other steps as may be necessary or desirable to enforce Buyer's rights against such Mortgage Loans, the related Mortgage Files and the Servicing Records.
(g) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,Purchased Mortgage Loan to Buyer. Seller or its designee (including Custodian) shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any Purchased Mortgage Loan by Seller.
(Ki) an original From time to time, Seller may request in writing that Buyer agree to have the Purchased Mortgage Loans registered on the MERS mortgage electronic registry system (the "MERS System") such that the mortgagee of any guaranty of payment record under such Purchased Mortgage Loans shall be identified as Mortgage Electronic Registration Systems, Inc. ("MERS"). If Buyer agrees to such registration, then prior to effecting such registration for any Purchased Mortgage Loan,
(L) , Seller shall deliver to Buyer an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements Electronic Tracking Agreement in favor of the originator of such Mortgage Loan or in favor of any assignee prior form and substance acceptable to the applicable Seller Buyer duly executed by Buyer, MERS and UCC-3 assignment financing statements in favor of the applicable SellerMERSCORP, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andInc.
Appears in 1 contract
Samples: Master Repurchase Agreement (Fieldstone Investment Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer; Account No. GLA 111569, account name SER, Bank of New York, ABA No. 000000000, Attn: Xxxx Xxxxxxx, not later than 5 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for as set forth in Section 11 of the Custodial and Disbursement Agreement not later than 6 p.m., New York City time, simultaneously with the delivery to Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction. Seller hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including Custodian) without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest of Seller in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including Custodian) (i) the Custodian, Custodial Identification Certificate and shall cause (ii) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Disbursement Agreement.
(Ad) the original executed Each Mortgage Note together with any applicable riders, endorsed on File relating to a Purchased Asset that is not delivered to Buyer or its face or designee (including Custodian) is and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan File not delivered to the applicable Seller,
Buyer or its designee (C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording officeincluding Custodian),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions . The possession of the Mortgage have been modifiedFile by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in each case (unless the particular item has not been returned a custodial capacity only. Each Mortgage File retained or held by Seller or its designee shall be segregated on Seller’s books and records from the applicable recording office) with evidence other assets of recording indicated thereon if Seller or its designee and the instrument being modified is a recordable document,
(G) originals books and records of all modification agreements in those instances in which Seller or its designee shall be marked appropriately to reflect clearly the terms sale of the related Purchased Asset to Buyer. Seller or provisions its designee shall release its custody of the Mortgage Note have been modified,
(H) File only in accordance with written instructions from Buyer, unless such release is required as incidental to the original policy servicing of the Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer; Account No. 066-000-000, xxr the account of DLJ Mortgage Capital, Inc., The Chase Manhattan Bank, ABA No. 021-000-000, Xxtn: StarNet P&I, not later than 3:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price to the following account of Seller; Account No. 5026000, for the account of StarNet Mortgage, Inc., Bank United, N.A., ABA No. 313000000, Xxtn: Edwaxx X. Xxxxxx, xxt later than 3:00 p.m. New York City time, simultaneously with the delivery to the Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including the Custodial Delivery Custodian) without recourse, but subject to the terms of this Repurchase Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) Notwithstanding anything to the contrary in this Repurchase Agreement, including agreements to enter into a Transaction pursuant to Section 3, Buyer shall have no obligation to purchase any Mortgage Loans on any Purchase Date if, after such purchase:
(1) an Event of Default by the Seller will have occurred and be continuing, or an Event of Default by the Seller would occur with notice or the passing of time; or
(2) the Repurchase Date for such Transaction would be later than the Termination Date.
(d) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including the Custodian, ) (i) the Custodial Identification Certificate and shall cause (ii) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery Agreement.
(e) Any Mortgage Files not delivered therewith; provided, that to Buyer or its designee (including the applicable Custodian) are and shall be held in trust by the Seller or its designee for the benefit of the Buyer as the owner thereof. The Seller or its designee shall deliver maintain a certificate copy of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true the Mortgage File and correct copies of the originals of such documents:
the Mortgage File not delivered to Buyer or its designee (A) including the original executed Custodian). The possession of the Mortgage Note together with any applicable riders, endorsed on its face or File by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee is at the applicable Seller in favor will of the Buyer for any coststhe sole purpose of servicing the related Purchased Mortgage Loan, losses and such retention and possession by the Seller or damages arising its designee is in a custodial capacity only. Each Mortgage File retained or held by the Seller or its designee shall be segregated on the Seller's books and records from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy other assets of the Mortgage, together with an original Seller or (to its designee and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments books and records of the Mortgage showing a complete chain Seller or its designee shall be marked appropriately to reflect clearly the sale of assignment from the originator of such related Purchased Mortgage Loan to the applicable Seller,
(C) the original Buyer. The Seller or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions its designee shall release its custody of the Mortgage have been modified, File only in each case (unless the particular item has not been returned accordance with written instructions from the applicable recording office) with evidence of recording indicated thereon if Buyer, unless such release is required as incidental to the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage Note have been modified,
(H) the original policy Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (Starnet Financial Inc)
PAYMENT, TRANSFER AND CUSTODY. The provisions of Paragraph 7 of the Master Repurchase Agreement are hereby modified and superseded in their respective entireties by the following provisions of this Section 7:
(a) On the Purchase Date for each TransactionDate, record ownership of the Purchased Loans Securities shall be transferred to Buyer Buyer.
(b) The original certificate or its designee certificates representing the Purchased Securities, registered in the name of Buyer, shall be held by the Collateral Agent, as bailee and agent for Buyer, the Series A Trustee (including for the Custodian) against the simultaneous transfer to an account equal and ratable benefit of the applicable Seller, specified in the Confirmation relating to such Transaction holders of the difference between Series A Notes) and the Series B Trustee (for the equal and ratable benefit of the holders of the Series B Notes), as their respective interests may appear. Subject to the provisions of Sections 5(a) and 5(d), Seller shall be entitled to receive all cash dividends and distributions paid in respect of the Purchased Securities.
(i) Subject to the Purchase Price for provisions of Section 7(c)(ii), Seller shall be entitled to exercise all voting and other corporate rights and powers of ownership with respect to the Purchased Loan(sSecurities. In furtherance and support of the foregoing, Buyer, in compliance with the Maryland General Corporation Law (the "MGCL"), hereby expressly grants Seller an irrevocable proxy to vote the Purchased Securities on (or consent to) minus (ii) any and all fees, costs and expenses actions requiring the vote or consent of common or preferred shareholders of CBO REIT including, without limitation, reasonable attorneys’ fees the election of directors and disbursements payable extraordinary actions. Such proxy shall be deemed coupled with an interest and shall expire upon the satisfaction in full of the Repo Obligations and the transfer of the Purchased Securities to Seller; provided, however, that upon termination of Seller's right to exercise all voting and other corporate rights and powers of ownership with respect to the Purchased Securities in accordance with the provisions of Section 7(c)(ii) and upon written notice to Seller and CBO REIT, Buyer pursuant may convert such proxy into a revocable proxy and, upon written notice to Section 27 Seller and CBO REIT, may revoke such proxy at anytime thereafter. All stock certificates representing or Section 30(devidencing Purchased Securities shall contain a legend including the following: "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN IRREVOCABLE PROXY. ANY HOLDER OR TRANSFEREE OF THIS CERTIFICATE IS SUBJECT TO THE TERMS AND LIMITATIONS OF THE IRREVOCABLE PROXY SET FORTH IN THE MASTER REPURCHASE AGREEMENT (INCLUDING ALL ANNEXES THERETO) BY AND BETWEEN CRIIMI MAE INC. AND MXXXXXX LXXXX INTERNATIONAL, ACTING THROUGH ITS AGENT MXXXXXX LYNCH, PIERCE, FXXXXX & SXXXX INCORPORATED, DATED APRIL 17, 2001". Seller shall, at all times while the foregoing proxy shall remain in connection effect, exercise all voting and other corporate rights and powers of ownership with such Transactionrespect to the Purchased Securities in a manner that does not conflict with, or result in a breach or violation of, any provision of any Transaction Document or either of the New Note Indentures.
(bii) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery Anything contained in the form attached hereto as Exhibit IV. In connection with each saleAgreement to the contrary notwithstanding, transfer, conveyance and assignment (A) if an Act of a Purchased Loan, on or prior to each Purchase Date Insolvency shall have occurred with respect to such Purchased LoanSeller or any Designated Seller Affiliate (an "Insolvency Event of Default"), the applicable Seller shall deliver or cause Seller's right to be delivered exercise all voting and released other corporate rights and powers of ownership with respect to the CustodianPurchased Securities shall thereupon automatically terminate, without notice, demand or other requirements of any kind, all of which are hereby expressly waived by Seller, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original if (1) an Event of Default shall have occurred and be continuing under clause (viii) or (ix) of the first paragraph of Section 14 (each a "Payment Event of Default"), or (2) an Event of Default other than an Insolvency Event of Default or a Payment Event of Default shall have occurred and be continuing for a period of thirty (30) consecutive days, then in either such case described in this clause (B) Buyer may, upon written notice to Seller, terminate Seller's right to exercise all voting and other corporate rights and powers of ownership with respect to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andPurchased Securities.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, (i) ownership of and title to the Purchased Loans Asset shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price in immediately available funds to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus and (ii) any Seller hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable assigns to Buyer pursuant on a servicing-released basis all of Seller’s right, title and interest in and to such Purchased Asset, together with all related Servicing Rights. Subject to this Agreement, Seller may sell to Buyer, repurchase from Buyer and re-sell Eligible Assets to Buyer, but may not substitute other Eligible Assets for Purchased Assets. Buyer has the right to designate each Servicer of the Purchased Assets (it being understood and agreed that Midland Loan Services, Inc. is approved as initial Servicer); the Servicing Rights and other servicing provisions under this Agreement are not severable from or to be separated from the Purchased Assets under this Agreement; and, such Servicing Rights and other servicing provisions of this Agreement constitute (a) “related terms” under this Agreement within the meaning of Section 27 101(47)(A)(i) of the Bankruptcy Code and/or (b) a security agreement or Section 30(d) in connection with such Transactionother arrangement or other credit enhancement related to the Repurchase Documents.
(b) On or before such Purchase DateWith respect to each Transaction, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery Certificate in the form attached hereto as Exhibit IV, provided, that notwithstanding the foregoing, upon request of Seller, Buyer in its sole but good faith discretion may elect to permit Seller to make such delivery by not later than the third (3rd) Business Day after the related Purchase Date, so long as Seller causes an Acceptable Attorney, Title Company or other Person acceptable to Buyer to deliver to Buyer and the Custodian a Bailee Letter on or prior to such Purchase Date. In Subject to Article 7(c), in connection with each sale, transfer, conveyance and assignment of a Purchased LoanAsset, on or prior to each Purchase Date with respect to such Purchased LoanAsset, the applicable Seller shall deliver or cause to be delivered and released to the CustodianCustodian a copy or original of each document as specified in the Asset File (as defined in the Custodial Agreement, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan Purchased Asset File”) ), pertaining to each of the Purchased Loans Assets identified in the Custodial Delivery Certificate delivered therewith; provided, together with any other documentation in respect of such Purchased Asset requested by Buyer, in Buyer’s sole but good faith discretion.
(c) From time to time, Seller shall forward to the Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, the Custodian shall hold such other documents as Buyer shall request from time to time. With respect to any documents that have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the applicable time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an officer’s certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to the Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (including the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit V attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to (i) complete the endorsements of the Purchased Assets, including without limitation the Mortgage Notes and Assignments of Mortgages, Participation Certificates and assignments of participation interests and any transfer documents related thereto, (ii) record the Assignments of Mortgages, (iii) prepare and file and record each assignment of mortgage, (iv) take any action (including exercising voting and/or consent rights) with respect to Participation Interests, Mezzanine Loans, or intercreditor or participation agreements, (v) complete the preparation and filing, in form and substance satisfactory to Buyer, of such financing statements, continuation statements, and other UCC forms, as Buyer may from time to time, reasonably consider necessary to create, perfect, and preserve Buyer’s security interest in the Purchased Assets, (vi) after the occurrence and during the continuance of an Authorized Representative Event of Default, enforce Seller’s rights under the Purchased Assets purchased by Buyer pursuant to this Agreement and to, and (vii) after the occurrence and during the continuance of an Event of Default, take such other steps as may be necessary or desirable to enforce Buyer’s rights against, under or with respect to such Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or direct that the Purchased Asset Files be deposited directly, with the Custodian. The Purchased Asset Files shall be maintained in accordance with the Custodial Agreement. If a Purchased Asset File is not delivered to Buyer or its designee (including the Custodian), such Purchased Asset File shall be held in trust by Seller certifying that any copies or its designee for the benefit of documents delivered represent true Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Purchased Asset File and correct copies of the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such documents:retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to Buyer. Seller or its designee (including the Custodian) shall release its custody of the Purchased Asset File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Assets, is in connection with a repurchase of any Purchased Asset by Seller or as otherwise required by law.
(d) Subject to clause (f) below, Buyer hereby grants to Seller a revocable option to direct Buyer with respect to the exercise of all voting and corporate rights with respect to the Purchased Assets and to vote, take corporate actions and exercise any rights in connection with the Purchased Assets, so long as no monetary Default, material non-monetary Default, or Event of Default has occurred and is continuing. Such revocable option is not evidence of any ownership or other interest or right of Seller in any Purchased Asset. Upon the occurrence and during the continuation of (i) a monetary or material non-monetary Default, (ii) an Event of Default or (iii) the exercise of any voting or corporate rights with respect to the Purchased Assets that could be reasonably determined to materially impair the Market Value, and in each case subject to the provisions of the Purchased Asset Documents, the revocable option discussed above shall be deemed to automatically terminate and Buyer shall be entitled to exercise all voting and corporate rights with respect to the Purchased Assets without regard to Seller’s instructions (including, but not limited to, if an Act of Insolvency shall occur with respect to Seller, to the extent Seller controls or is entitled to control selection of any servicer, Buyer may transfer any or all of such servicing to an entity satisfactory to Buyer).
(e) Notwithstanding the provisions of Article 7(b) above requiring the execution of the Custodial Delivery Certificate and corresponding delivery of the Purchased Asset File to the Custodian on or prior to the related Purchase Date, with respect to each Transaction involving a Purchased Asset that is identified in the related Confirmation as a “Table Funded” Transaction, Seller shall, in lieu of effectuating the delivery of all or a portion of the Purchased Asset File on or prior to the related Purchase Date, (i) deliver to the Custodian by facsimile or email on or before the related Purchase Date for the Transaction (A) the promissory note(s), original executed Mortgage Note together with any applicable riders, endorsed on its face stock certificate or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller Participation Certificate in favor of Seller evidencing the Buyer for any costsmaking of the Purchased Asset, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy Seller’s endorsement of such Mortgage Note),
instrument to Buyer, (B) the original mortgage, security agreement or similar item creating the security interest in the related collateral and the applicable assignment document evidencing the transfer to Buyer, (C) such other components of the Purchased Asset File as Buyer may require on a case by case basis with respect to the particular Transaction, and (D) evidence satisfactory to Buyer that all documents necessary to perfect Seller’s (and, by means of assignment to Buyer on the Purchase Date, Buyer’s) interest in the Purchased Items for the Purchased Asset, (ii) deliver to Buyer and Custodian a Bailee Letter from an Acceptable Attorney, Title Company or other Person acceptable to Buyer on or prior to such Purchase Date and (iii) not later than the third (3rd) Business Day following the Purchase Date, deliver to Buyer the Custodial Delivery Certificate and to the Custodian the entire Purchased Asset File.
(f) Notwithstanding the rights granted to Seller pursuant to clause (d) above, Seller shall not, and shall not permit Servicer or any other servicer of any Purchased Asset to extend, amend, waive, terminate, rescind, cancel, release or otherwise modify the material terms of or any collateral, guaranty or indemnity for, or exercise any material right or remedy of a holder (including all lending, corporate and voting rights, remedies, consents, approvals and waivers) of, any Purchased Asset or Purchased Asset Document, or consent to any amendments, modifications, waivers, releases, sales, transfers, dispositions or other resolutions relating to any Purchased Asset or Purchased Asset Document (except to the extent that such original is retained contemplated or required by the relevant public recording officerelated Purchased Asset Documents) a copy including, without limitation, the following actions set forth in clauses (i) through (v) below, without the prior written consent of Buyer:
(i) any forbearance, extension or other loan modification with respect to any Purchased Asset;
(ii) the Mortgagerelease, together with an original discharge or reduction of any: (A) lien on any Mortgaged Property or (B) lien or claim on any letters of credit and other non-cash collateral that is required to be maintained pursuant to the extent that such original is retained by underlying Mortgage loan documents, if any;
(iii) the relevant public recording office) a copy extension of credit (including increasing the terms of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan existing credit) to the applicable Seller,any Person with respect to any Purchased Asset;
(Civ) any sale or other disposition of any Purchased Asset (except as permitted under Article 3(e) of this Agreement), Mortgaged Property or any other material property or collateral related thereto; and
(v) the original or (to the extent that such original is retained by the relevant public recording office) a copy incurrence of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney lien or other instrument that authorized encumbrance other than as expressly created hereunder or empowered such person to sign, an original of such power of attorney or under any other instrument, andTransaction Document.
Appears in 1 contract
Samples: Master Repurchase Agreement (Colony Financial, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer; Account No. GLA 111569 SER, for the account of CDC Mortgage Capital, Inc., Bank of New York, ABA No. 000000000, Attn: Chin-Xxxx Xxxx not later than 3 p.m. New York time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Notwithstanding the preceding sentence, on each Repurchase Date, Seller shall remit payment of the Repurchase Price to the Settlement Account in accordance with Section 11 of the Custodial Agreement. Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for to the account designated pursuant to the wire instructions in the related Seller Asset Schedule, not later than 6 p.m. New York time, simultaneously with the delivery to Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction. Each of NCCC and all feesNCMC hereby sells, costs transfers, conveys and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including Custodian) without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of NCCC and NCMC, as applicable, in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including Custodian) (i) the Custodian, Custodial Identification Certificate and shall cause (ii) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Agreement.
(Ad) the original executed Any Mortgage Note together with any applicable riders, endorsed on Files not delivered to Buyer or its face or designee (including Custodian) are and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing File not delivered to Buyer or its designee (including Custodian). The possession of the Mortgage File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by Seller or its designee is in a complete chain of assignment custodial capacity only. Each Mortgage File retained or held by Seller or its designee shall be segregated on Seller's books and records from the originator other assets of such Seller or its designee and the books and records of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Mortgage Loan to the applicable Seller,
(C) the original Buyer. Seller or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions its designee shall release its custody of the Mortgage have been modifiedFile only in accordance with written instructions from Buyer, in each case (unless such release is required as incidental to the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage Note have been modified,
(H) the original policy Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan which is not a Wet Ink Mortgage Loan (or with respect to item (vii) below within seven Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements (or allonges), endorsed on its face or by allonge attached thereto"Pay to the order of ________, without recourse, " and signed in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor name of the Buyer for any costs, losses or damages arising from last endorsee (the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B"Last Endorsee") the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of officer (in the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andevent that
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a power of attorney, substantially in the difference between form attached as Exhibit II-2 hereto, allowing Seller to administer, operate and service such Purchased Assets. Provided that no Event of Default shall have occurred and be continuing, the power of attorney (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitationsubject to the terms of this Agreement, reasonable attorneys’ fees the exercise of any voting or similar rights by Seller) shall be binding upon Buyer and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such TransactionBuyer’s successors and assigns.
(b) On or before such With respect to each Table Funded Purchased Asset, Seller shall cause Bailee to deliver to Buyer by no later than 1:00 p.m. (New York time), on the Purchase Date, by facsimile a true and complete copy of the related Mortgage Note or Participation Certificate (as applicable), the Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement. In connection with the sale of each Purchased Asset, not later than 1:00 p.m. (New York time), two (2) Business Days prior to the related Purchase Date (or with respect to a Table Funded Purchased Asset not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the applicable Purchase Date), Seller shall deliver or cause Bailee to be delivered deliver (with a copy to Buyer or its designee Buyer) and release to Custodian (together with the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianAsset File Checklist), and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning (or in the case of a Table Funded Purchased Asset, not later than two (2) Business Days following the receipt by Custodian) confirming the receipt of, the following documents original (or where indicated below, copied) documents, to the extent applicable (collectively, the “Loan FilePurchased Asset Documents”) pertaining ), with respect to each of the Purchased Loans Asset identified in the Custodial Delivery Purchased Asset File Checklist delivered therewith; provided:
(i) the original Mortgage Note bearing all intervening endorsements, endorsed “Pay to the order of _________ without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized Person of the Last Endorsee (in the event that the Purchased Asset was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Asset was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”) or a lost note affidavit in a form reasonably approved by Buyer, with a copy of the applicable Seller shall deliver Mortgage Note attached thereto;
(ii) the original loan agreement and guaranty, if any, executed in connection with the Purchased Asset;
(iii) the original Mortgage with evidence of recording thereon, or a certificate true and correct copy of an Authorized Representative the original that has been submitted for recordation in the appropriate governmental recording office of such Seller certifying that any copies the jurisdiction where the Mortgaged Property is located;
(iv) the originals of documents delivered represent all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or true and correct copies of the originals that have each been submitted for recordation in the appropriate governmental recording office of such documents:the jurisdiction where the Mortgaged Property is located;
(Av) the original executed Assignment of Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recoursein blank for each Purchased Asset, in blank form and otherwise showing substance acceptable for recording and signed in the name of the Last Endorsee (in the event that the Purchased Asset was acquired by the Last Endorsee in a completemerger, unbroken chain the signature must be in the following form: “[Last Endorsee], successor by merger to [name of endorsement from predecessor]”; in the initial lender event that the Purchased Asset was acquired or originated while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”);
(vi) the originals of all intervening assignments of mortgage (if any) with evidence of recording thereon, or copies thereof;
(vii) the original Title Policy or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage NoteTitle Policy has not been issued, together with a copy of such Mortgage Note),the irrevocable marked commitment to issue the same;
(Bviii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Asset;
(to ix) the extent original Assignment of Leases, if any, with evidence of recording thereon, or a true and correct copy of the original that such original has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is retained by located;
(x) the relevant public originals of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recording officethereon, or copies thereof;
(xi) a copy of the MortgageUCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing thereon or copies thereof together with an evidence that such UCC financing or continuation statements have been sent for filing, and UCC assignments in blank, which UCC assignments shall be in form and substance acceptable for filing in the applicable jurisdictions;
(xii) the original environmental indemnity agreement or similar guaranty or indemnity, whether stand-alone or incorporated into the applicable loan documents (if any);
(xiii) the original omnibus assignment in blank or such other documents necessary and sufficient to transfer to Buyer all of Seller’s right, title and interest in and to the extent that such original is retained Purchased Asset (if any);
(xiv) a Survey of the Mortgaged Property (if any) as accepted by the relevant public recording officetitle company for issuance of the Title Policy;
(xv) a copy of any intervening assignments all servicing agreements and Servicing Records related to such Purchased Asset, which Seller shall deliver to Servicer (with a copy to Buyer);
(xvi) a copy of the Mortgage showing Mortgagor’s opinions of counsel;
(xvii) in the case of a complete chain Purchased Asset that is a Participation Interest, the original Participation Certificate evidencing such Participation Interest together with an assignment in blank;
(xviii) in the case of a Purchased Asset that is a Participation Interest, the participation agreement and any other documents evidencing such Participation Interest;
(xix) an assignment from the originator of such Mortgage Loan any management agreements, permits, contracts and other material agreements (if any);
(xx) reports of UCC, tax lien, judgment and litigation searches as requested by Buyer, conducted by search firms reasonably acceptable to Buyer with respect to the applicable Seller,Purchased Asset, Seller and the related underlying obligor, such searches to be conducted in each location Buyer shall reasonably designate and such reports reasonably satisfactory to Buyer;
(Cxxi) the original or a copy of the intercreditor or co-lender agreement (if any) executed in connection with the Purchased Asset to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,subject borrower, or an affiliate thereof, has encumbered its assets with senior, junior or similar financing, whether mortgage financing or mezzanine loan financing;
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording officexxii) copies of all modification agreements documents relating to the formation and organization of the related obligor under such Purchased Asset, together with all consents and resolutions delivered in those instances connection with such obligor’s obtaining such Purchased Asset; and
(xxiii) all other material documents and instruments evidencing, guaranteeing, insuring, securing or modifying such Purchased Asset, executed and delivered in connection with, or otherwise relating to, such Purchased Asset, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property; provided that if Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under the provisions above (excluding the Mortgage Note and Assignment of Mortgage, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and, unless waived by Buyer, an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original. Seller shall then, (1) use commercially reasonable efforts to obtain and deliver the original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using commercially reasonable efforts to obtain the original), (1) after the expiration of such best efforts period, deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document and (1) thereafter have no further obligation to deliver the related original document.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms or provisions of the Mortgage this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been modified, in each case (unless the particular item has delivered or are being delivered to recording offices for recording and have not been returned from to Seller in time to permit their delivery hereunder at the applicable recording office) time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with evidence of recording indicated thereon if the instrument being modified an Officer’s Certificate certifying that such copy is a recordable document,
true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (Gincluding Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit II-1 attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to (1) complete and record any Assignment of Mortgage, (1) complete the endorsement of any Mortgage Note or Participation Certificate (as applicable) and (1) take such other steps as may be necessary or desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records; which power Buyer agrees will only be exercised during the continuance of an Event of Default. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee (including Custodian) is and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Purchased Asset File and the originals of all modification agreements the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in those instances in which a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the terms or provisions and conditions of this Agreement, of the Mortgage Note have been modified,
related Purchased Asset to Buyer. Seller or its designee (Hincluding Custodian) shall release its custody of the original policy Purchased Asset File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy of any ground lease Buyer in form and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andsubstance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (NorthStar Real Estate Income Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 144-089059, account name: Gestation, ABA No. 000-000-000, not later than 3:00 p.m. New York time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Sellers acknowledge that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable SellerSellers (or as otherwise directed by the Sellers): Account No. 2080000697499, specified in for the Confirmation account of HomeBanc Mortgage Corporation, Wachovia Bank, National Association, ABA No. 000000000, Attn: Treasury Dept., not later than 5:00 p.m. New York time, simultaneously with the delivery to the Buyer of the Purchased Mortgage Loans relating to such Transaction of the difference between (i) the Purchase Price for each Transaction. With respect to the Purchased Loan(s) minus (ii) Mortgage Loans being sold by any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered Sellers hereby sell, transfer, convey and assign to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Sellers in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds hereunder shall be in immediately available funds.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation Confirmation. Seller, simultaneously with the delivery to the Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to such each Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any 10 hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee including the Custodial Delivery Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies. Upon transfer of the Mortgage Loans to Buyer as set forth in Paragraph 3(a) of this Agreement and until termination of any Transactions as set forth in this Agreement, record title in the form attached hereto as Exhibit IV. name of Seller to each Mortgage Loan shall be retained by Seller in trust, for the benefit of Buyer, for the sole purpose of facilitating the servicing and the supervision of the servicing of the Mortgage Loans by Seller in accordance with Section 25 hereof.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including the Custodian), and shall cause the Custodian prior to deliver a Trust Receipt on the Purchase Date concerning the receipt ofBuyer's purchase therefor, the following original documents (collectivelythe "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided:
(i) the original Mortgage Note bearing all intervening endorsements, endorsed "Pay to the order of _________, without recourse" and signed in the name of the Seller by an authorized officer (in the event that the applicable Mortgage Loan was acquired in a merger, the signature must be in the following form: "[owner], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[owner], formerly known as [previous name]";
(ii) the original of any guarantee executed in connection with the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon or copies certified by Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of to have been sent for recording;
(iv) the originals of such documents:all assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(Av) the original executed Assignment of Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recoursein blank for each Mortgage Loan, in blank form and otherwise showing substance acceptable for recording and signed in the name of the Seller; in the event that the Mortgage Loan was acquired in a completemerger, unbroken the signature must be in the following form: "[owner], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[owner], formerly known as [previous name]";
(vi) the originals of all intervening assignments of mortgage that complete the 11 chain of endorsement ownership from the initial lender (ororiginal owner to the Seller, if such original Mortgage Note has with evidence of recording thereon or copies certified by Seller to have been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer sent for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),recording;
(Bvii) the original or (fire and casualty insurance policy covering the mortgaged property which is an amount at least equal to the extent that such outstanding principal balance of the Mortgage Loan, as well as the original insurance against flood hazards if the Mortgaged Property is retained an area identified by the relevant public recording officeFederal Emergency Management Agency as having special flood hazards;
(viii) with respect to any Mortgage Loan that has been outstanding for five (5) years or less, an appraisal of the related mortgaged property signed prior to the approval of the Mortgage Loan application by a qualified appraiser, duly appointed by the originator of the Mortgage Loan;
(ix) a copy of the MortgageUCC-1 Financing Statement, certified as true and correct by the Seller or recording agent, stating Seller as Secured Party, together with an original or (to assignment of UCC-1 executed by Seller with the extent that such original is retained by secured party in blank, but if the relevant public recording office) a copy of any UCC-1 does not name "Seller" as the secured party, the Mortgage File shall contain all intervening assignments of that complete the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan original secured party to the applicable Seller,, and, if provided, a UCC-3 Continuation Statement;
(Cx) the original PMI Policy or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (certificate, if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,any;
(Dxi) an attorney's opinion of title and abstract of title or the original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available mortgagee title insurance policy, or if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s mortgagee title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocablethe preliminary title report, binding binder or commitment to insure;
(xii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage;
(xiii) either a Seller Release or a Warehouse Lender Release from any Warehouse Lender having a security interest in a Mortgage Loan, as appropriate; and
(xiv) any other item which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative constitute part of the title companyMortgage File.
(d) With respect to Hospital Loans, on or prior to each Purchase Date, the Seller shall deliver or cause to be delivered and released to Buyer or its designee (including the Custodian), prior to Buyer's purchase therefor, at a minimum, the documents listed in Sections 7(c) (i), 7(c)(v) and 7(c)(xiii), above.
(e) Prior to the first Transaction, Seller shall deliver to Buyer the following which shall 12 be held in escrow by the Buyer until the termination of this Agreement or the occurrence of an Event of Default:
(i) a fully executed power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, complete the endorsement of the Mortgage Note and take such other steps as may be necessary or desirable to enforce Buyer's rights against such Mortgage Loans, the related Mortgage Files and the Servicing Records;
(ii) a fully executed irrevocable letters of instructions to Servicers or Master Servicers, substantially in the form of Exhibit IV attached hereto, directing such Servicers or Master Servicer to make all payments of Income directly to Buyer; and
(iii) a fully executed Assignment of Takeout, substantially in the form of Exhibit VI attached hereto, directing such Takeout Investor (i) to issue such title insurance policy,accept delivery of the Mortgage Loans subject thereto from Buyer and (ii) to pay Buyer the purchase price for the Mortgage Loans set forth in the Takeout Commitment.
(Ie) Buyer may deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with a designee acting in the capacity of bailee for the Buyer. If the Mortgage Files are delivered to Buyer or its designee, Buyer or its designee shall during the term of this Agreement exercise reasonable and prudent care in the maintenance thereof. If the Mortgage Loan documents are delivered to Custodian, the Mortgage Files shall be maintained in accordance with the Custodial Agreement. The Seller understands and agrees that the Custodian shall have no responsibility to the Seller, including without limitation any responsibility to keep the Seller informed of any changes in the status of such Mortgage Files or in the Buyer's instructions with respect thereto, except as explicitly set forth in the Custodial Agreement.
(f) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by the Seller or its designee for the benefit of the Buyer as the owner thereof. The Seller or its designee shall maintain a copy of any ground lease the Mortgage File and any ground lessor estoppels,
the originals of the Mortgage File not delivered to Buyer or its designee (J) if including the Custodian). The possession of the Mortgage File by the Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. Each Mortgage Loan contains a Future Advance Obligation, an original File retained or held by the Seller or its designee shall be segregated on the Seller's books and records from the other assets of the Seller or its designee and the books and records of the Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Purchased Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andthe
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 00000000, for the account of MLMCI Match Book, Bankers Trust Co., N.Y., ABA No. 000-000-000, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable Seller (or as otherwise directed by the Seller): Account No. 0000000, specified in for the Confirmation account of HomeBanc Payoff Account, Bank One, ABA No. 000000000, Attn: Xxxxx Xxxxxxxxx, not later than 5:00 p.m. New York City time, simultaneously with the delivery to the Buyer of the Purchased Mortgage Loans relating to such Transaction of the difference between (i) the Purchase Price for each Transaction. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. Solely for purpoxxx xx any Transaction involving Mortgage Loans, Section 7 of the Master Repurchase Agreement is hereby deleted in its entirety and replaced with the following:
(a) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including Custodian) of the Mortgage Loans relating to such Transaction each Transaction, hereby sells, transfers, conveys and assigns to Buyer or its designee (including Custodian) without recourse, but subject to the terms of the difference between (i) Master Repurchase Agreement, all the Purchase Price for right, title and interest of Seller in and to the Purchased Loan(s) minus (ii) Mortgage Loans together with all right, title and interest in and to the proceeds of any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionrelated insurance policies.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased each Mortgage Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified delivered therewith:
(i) the original Mortgage Note bearing all intervening endorsements (or allonges), endorsed "Pay to the order of ___________, without recourse" and signed in the Custodial Delivery delivered therewith; provided, name of the last endorsee (the "Last Endorsee") by an authorized officer (in the event that the applicable Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(ii) the original of any guarantee executed in connection with the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon or a copy certified by Seller, its agent or the title company on behalf of Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of have been sent for recording;
(iv) the originals of such documents:all assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller, its agent or the title company on behalf of Seller to have been sent for recording, if any;
(Av) Except with respect to Mortgage Loans registered on MERS, the original assignment of Mortgage in blank for each Mortgage Loan, in form and substance acceptable for recording and signed in the name of the last endorsee thereof (in the event that the Mortgage Loan was acquired by the last endorsee in a merger, the signature must be in the following form: "[the last endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the last endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been sent for recording (intervening assignments shall not be required for any Mortgage that has been originated in the name of MERS and registered under the MERS System), if any;
(vii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Noteany),; and
(Bviii) the original or (mortgagee policy of title insurance, to the extent delivered; and
(ix) the original power of attorney, if any, or a copy thereof certified by Seller to have been sent for recording, for any document described above.
(c) Buyer shall deposit the Mortgage Files representing the Mortgage Loans, or direct that such original is retained the Mortgage Files be deposited directly, with Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(d) Any Mortgage Files not delivered to Buyer or its designee (including Custodian) are and shall be held in trust by Seller or its designee for the relevant public recording office) benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Mortgage Loan, and such retention and possession by Seller or its designee is in a complete chain custodial capacity only. The books and records (including any computer records or tapes) of assignment from Seller or its designee shall be marked appropriately to reflect clearly the originator sale of such the related Mortgage Loan to the applicable Seller,
Buyer. Seller or its designee (Cincluding Custodian) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions shall release its custody of the Mortgage have been modifiedFile only in accordance with written instructions from Buyer, in each case (unless such release is required as incidental to the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage Note have been modified,
(H) the original policy Loans or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Letter Agreement (American Home Mortgage Investment Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer as set forth in 10(b) below against the simultaneous transfer of the Purchase Price to the following account of Sellers: Account No. 2000028326560, for the account of Homebanc Mortgage Corp ML WH Settlement Account, Wachovia Bank, National Association, ABA No. 000000000 and approval of the release of such monies therefrom. Unless otherwise mutually agreed in writing, all transfers of funds to be made by Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at such account. Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account approval by the Buyer of the applicable Seller, specified in the Confirmation relating to such Transaction release of the difference between (i) the Purchase Price for in accordance with the Wiring Instructions. With respect to Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable such Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to Date, such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee the Custodian, Mortgage File for the related Purchased Mortgage Loans as set forth in this Repurchase Agreement and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andAgreement.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: BANK ONE NA CHGO/Bear Xxxxxxx ABA#000000000, Acct: MBS A/C # 5801230 Attn: Xxxxx Xxxxxx, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each the Transaction, ownership of the Purchased Loans Assets shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for as required under the Escrow Agreement simultaneously with the delivery to the Buyer of the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable Assets relating to Buyer pursuant the Transaction. With respect to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such the Purchased Assets being sold by a Seller on the Purchase Date, the applicable such Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached theretodesignee, without recourse, in blank but subject to the terms of this Repurchase Agreement, all the right, title and otherwise showing a complete, unbroken chain interest of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor and to the Purchased Assets in all cases subject to the rights and obligations of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy Sellers under Section 3(c) of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andthis Repurchase Agreement.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan (or with respect to item (vii) below within five Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements, endorsed on its face or by allonge attached thereto, "Pay to the order of ________ without recourse, and without representation or warranty, express or implied" and signed in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor name of the Buyer for any costs, losses or damages arising from last endorsee (the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B"Last Endorsee") the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of officer (in the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such event that the Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified was acquired by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller Last Endorsee in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to signmerger, an original of such power of attorney or other instrument, andthe
Appears in 1 contract
Samples: Master Repurchase Agreement (American Residential Investment Trust Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by each Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Agent, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 3:00 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer the Buyers or its their designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for by the Purchased Loan(s) minus (ii) any and all feesAgent on behalf of the Buyers to the Seller, costs and expenses includingin accordance with the wiring instructions set forth on Schedule 2 hereto, without limitationnot later than 6:00 p.m., reasonable attorneys’ fees and disbursements payable New York City time, simultaneously with the delivery by the Custodian to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee Agent of the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date Trust Receipts with respect to such the Purchased LoanAssets relating to each Transaction. The Seller hereby sells, the applicable Seller shall deliver or cause to be delivered transfers, conveys and released assigns to the Buyers or their designee (including the Custodian), subject to the terms of this Agreement, all the right, title and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each interest of the Seller in and to the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note Assets together with any applicable ridersall right, endorsed on its face or by allonge attached thereto, without recourse, title and interest in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy proceeds of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andPurchased Items.
Appears in 1 contract
Samples: Master Repurchase Agreement (Gramercy Capital Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, (i) ownership of the Purchased Loans Asset shall be transferred to Buyer or its designee (including the any Custodian) against the simultaneous transfer of the Purchase Price in immediately available funds to an account of the applicable SellerSeller or an Acceptable Attorney pursuant to an escrow letter or other undertaking approved by Buyer, in its sole discretion specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus and (ii) any Seller hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable assigns to Buyer pursuant on a servicing-released basis all of Seller’s right, title and interest in and to Section 27 or Section 30(d) in connection such Purchased Asset, together with such Transactionall related Servicing Rights. Subject to this Agreement, Seller may sell to Buyer, repurchase from Buyer and re-sell Eligible Assets to Buyer, but may not substitute other Eligible Assets for Purchased Assets.
(b) On or before such Seller shall:
(i) with respect to each Purchased Asset that is not a Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) on the Business Day prior to the related Purchase Date, deliver and release to Custodian (with a copy to Buyer), the applicable Purchased Asset Documents together with any other documentation in respect of such Purchased Asset requested by Buyer, in Buyer’s sole discretion, and (B) on the Purchase Date, cause Custodian to deliver a Trust Receipt confirming receipt of such Purchased Asset Documents; and
(ii) with respect to each Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) on the Purchase Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the related Mortgage Note with assignment in blank, loan agreement, Mortgage, Title Policy and executed Bailee Agreement, (B) not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the Purchase Date, deliver or Bailee to deliver and release to Custodian (with a copy to Buyer), the Purchased Asset Documents and any other documentation in respect of such Purchased Asset requested by Buyer, in its sole discretion, and (C) not later than two (2) Business Days following receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt; provided that if Seller shall deliver cannot deliver, or cause to be delivered, any of the original Purchased Asset Documents required to be delivered as originals (excluding the Mortgage Note and the Assignment of Mortgage, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and an officer’s certificate of Seller certifying that such copy represents a true and correct copy of the original and shall use its best efforts to obtain and deliver such original document within ninety (90) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using its best efforts to obtain the original). After the expiration of such best efforts period, Seller shall deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document, and thereafter Seller shall have no further obligation to deliver the related original document.
(c) From time to time, Seller shall forward to Buyer and to the Custodian additional copies of, originals of, documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, the Custodian shall hold such other documents in accordance with the Custodial Agreement. With respect to all of the Purchased Assets delivered by Seller to Buyer, its designee (including the Custodian), or the Acceptable Attorney, as the case may be, Seller shall have executed and delivered to Buyer the omnibus power of attorney substantially in the form of Exhibit IV attached hereto irrevocably appointing Buyer its attorney in fact with full power, if an Event of Default has occurred and is continuing, to (i) complete the endorsements of the Purchased Assets, including without limitation the Mortgage Notes, Assignments of Mortgages, and any transfer documents related thereto, (ii) record the Assignments of Mortgages, (iii) prepare and file and record each assignment of mortgage, (iv) take any action (including exercising voting and/or consent rights) with respect to intercreditor agreements, co-lender agreements or participation agreements, (v) complete the preparation and filing, in form and substance satisfactory to Buyer, of such financing statements, continuation statements, and other UCC forms, as Buyer may from time to time, reasonably consider necessary to create, perfect, and preserve Buyer’s security interest in the Purchased Assets, (vi) enforce Seller’s rights under the Purchased Assets purchased by Buyer pursuant to this Agreement, and (vii) take such other steps as may be necessary or desirable to enforce Buyer’s rights against, under or with respect to such Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or direct that the Purchased Asset Files be deposited directly, with the Custodian, and the Purchased Asset Files shall be maintained in accordance with the Custodial Agreement. If a Purchased Asset File is not delivered to Buyer or its designee (including the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each saleCustodian), transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller Asset File shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to Buyer. Seller or its designee (including the Custodian) shall release its custody of the Purchased Asset File only in accordance with an original or (written instructions from Buyer, unless such release is required as incidental to the extent that such original servicing of the Purchased Assets, is retained by the relevant public recording office) in connection with a copy repurchase of any intervening assignments of Purchased Asset by Seller or as otherwise required by law or set forth in the Mortgage showing Custodial Agreement.
(d) Buyer hereby grants to Seller a complete chain of assignment from the originator of such Mortgage Loan revocable option to direct Buyer with respect to the applicable Seller,
(C) the original or (exercise of all voting and corporate rights with respect to the extent that such original is retained by the relevant public recording office) Purchased Assets (each, a copy of any Assignment of Leases (if such item is a document separate from the Mortgage“Revocable Option”) and of to vote, take corporate actions and exercise any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued rights in connection with the origination Purchased Assets, so long as no monetary Potential Event of such Mortgage Loan, together Default or Event of Default has occurred and is continuing. Such Revocable Option is not evidence of any ownership or other interest or right of Seller in any Purchased Asset. Upon the occurrence and during the continuation of a monetary Potential Event of Default or an Event of Default or with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement respect to provide the same pursuant exercise of any voting or corporate rights with respect to binding escrow instructions executed by an authorized representative the Purchased Assets that could materially impair the market value of the title company) to issue such title insurance policy,
(I) a copy of any ground lease Purchased Assets, and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case subject to the provisions of the Purchased Asset Documents, the Revocable Option discussed above shall automatically terminate and thereafter Buyer shall be entitled to exercise all voting and corporate rights with respect to the Purchased Assets without regard to Seller’s instructions (unless including, but not limited to, if an Act of Insolvency shall occur with respect to Seller, to the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon extent Seller controls or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original is entitled to control selection of any subordination agreement servicer, Buyer may transfer any or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original all of such power of attorney or other instrument, andservicing to an entity satisfactory to Buyer).
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 00000000, for the account of MLMCI Matchbook, Bankers Trust, N.Y., ABA# 021 001 033, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Sellers acknowledge that they have no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable SellerSellers (or as otherwise directed by the Sellers): Deutsche Bank National Trust Company, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price Account No. 37622, for the account of Buyer, ABA# 0000-000-000. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable each Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
Samples: Master Repurchase Agreement (MortgageIT Holdings, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder will be made in Dollars, in immediately available funds, without deduction, set off or counterclaim, to Buyer at the account detailed in Schedule 4 no later than 5:00 p.m. (New York City time), on the date on which such payment is due (and each such payment made after such time will be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans shall be Assets is transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) with respect to Mortgage Loans for which a Warehouse Lender’s Release is delivered, the Purchase Price for the Purchased Loan(s) minus Warehouse Lender, (ii) any and all feeswith respect to Mortgage Loans for which a Seller’s Release is delivered, costs and expenses includingthe Seller, without limitationor (iii) with respect to Wet-Ink Mortgage Loans, reasonable attorneys’ fees and disbursements payable the Settlement Agent, in each case as detailed in the related Transaction Request, simultaneously with the delivery to Buyer pursuant of the Purchased Assets relating to Section 27 or Section 30(d) in connection with such each Transaction.
(bc) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer the CustodianMortgage File for the related Purchased Assets.
(d) From time to time, Seller may provide funds to Buyer for deposit to a non-interest bearing demand deposit account (the “Operating Account”) in accordance with this Section 10. The Operating Account shall be established by the Buyer with the Bank and shall cause be in the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each name of the Purchased Loans identified Buyer. The Buyer shall have exclusive withdrawal rights from the Operating Account. Buyer shall maintain records of Seller’s interest in the Custodial Delivery delivered therewith; providedfunds maintained in the Operating Account and shall deliver, that or cause to be delivered, to Seller on a daily basis a balance statement for the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that Operating Account. Withdrawals may be paid by wire transfer or any copies of documents delivered represent true and correct copies of the originals of such documents:other means chosen by Buyer from time to time in its sole discretion.
(Ae) the original executed Mortgage Note together with any applicable ridersNo more than once per day, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing Seller may submit a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment written request (which may be an agreement via e-mail) to provide Buyer to withdraw available funds from the Operating Account to be applied pursuant to such request. If such request is received by Buyer on or prior to 5:00 p.m. (New York City time) on any Business Day, such funds shall be remitted in accordance with such request on the same pursuant to binding escrow instructions executed by an authorized representative of Business Day; provided, that, any request received after 5:00 p.m. (New York City time) shall be remitted on the title company) to issue such title insurance policy,following Business Day.
(If) In connection with any purchase by a copy of any ground lease and any ground lessor estoppels,
Takeout Investor (J) if such Mortgage Loan contains a Future Advance Obligationdate, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office“Takeout Date”), with evidence any amounts received in excess of filing indicated thereon or certified by amounts due to Buyer shall be deposited into the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andOperating Account.
Appears in 1 contract
Samples: Master Repurchase Agreement (Pennymac Financial Services, Inc.)
PAYMENT, TRANSFER AND CUSTODY. Solely for purposxx xx any Transaction for the Mortgage Loans, Section 7 of the Master Repurchase Agreement is hereby deleted in its entirety and replaced with the following:
(a) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including Custodian) of the Mortgage Loans relating to such Transaction each Transaction, hereby sells, transfers, conveys and assigns to Buyer or its designee (including Custodian) without recourse, but subject to the terms of the difference between (i) Master Repurchase Agreement, all the Purchase Price for right, title and interest of Seller in and to the Purchased Loan(s) minus (ii) Mortgage Loans together with all right, title and interest in and to the proceeds of any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionrelated insurance policies.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased each Mortgage Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified delivered therewith:
(i) the original Mortgage Note bearing all intervening endorsements (or allonges), endorsed "Pay to the order of ___________, without recourse" and signed in the Custodial Delivery delivered therewith; provided, name of the last endorsee (the "Last Endorsee") by an authorized officer (in the event that the applicable Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(ii) the original of any guarantee executed in connection with the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon or a copy certified by Seller, its agent or the title company on behalf of Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of have been sent for recording;
(iv) the originals of such documents:all assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller, its agent or the title company on behalf of Seller to have been sent for recording, if any;
(Av) the original executed assignment of Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recoursein blank for each Mortgage Loan, in blank form and otherwise showing substance acceptable for recording and signed in the name of the last endorsee thereof (in the event that the Mortgage Loan was acquired by the last endorsee in a completemerger, unbroken chain the signature must be in the following form: "[the last endorsee], successor by merger to [name of endorsement from predecessor]"; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the last endorsee], formerly known as [previous name]");
(orvi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been sent for recording, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),any;
(Bvii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any); and
(viii) the original power of attorney, if any, or a copy thereof certified by Seller to have been sent for recording, for any document described above.
(c) With respect to each Mortgage Loan delivered by Seller to Buyer or its designee (including Custodian), Seller shall have executed an omnibus power of attorney irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the extent assignment of Mortgage, complete the endorsement of the Mortgage Note and take such other steps as may be necessary or desirable to enforce Buyer's rights against such Mortgage Loans, the related Mortgage Files and the servicing records.
(d) Buyer shall deposit the Mortgage Files representing the Mortgage Loans, or direct that such original is retained the Mortgage Files be deposited directly, with Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(e) Any Mortgage Files not delivered to Buyer or its designee (including Custodian) are and shall be held in trust by Seller or its designee for the relevant public recording office) benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Mortgage Loan, and such retention and possession by Seller or its designee is in a complete chain custodial capacity only. The books and records (including any computer records or tapes) of assignment from Seller or its designee shall be marked appropriately to reflect clearly the originator sale of such the related Mortgage Loan to the applicable Seller,
Buyer. Seller or its designee (Cincluding Custodian) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions shall release its custody of the Mortgage have been modifiedFile only in accordance with written instructions from Buyer, in each case (unless such release is required as incidental to the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage Note have been modified,
(H) the original policy Loans or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Letter Agreement (American Home Mortgage Investment Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer: JPMorgan Chase Bank, Account Number xxxxxxxx, for the credit account: JPMorgan Chase Bank NY; ref: PennyMac, ABA# xxx-xxx-xxx Attn: Mortgage Finance, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price to the following account of Sellers: Account No. xxxxxxxxxx, for the Purchased Loan(s) minus (ii) any and all feesaccount of PennyMac Operating Partnership, costs and expenses includingL.P. Operating Account, without limitationBank of America, reasonable attorneys’ fees and disbursements payable N.A., ABA No. xxx xxx xxx, Attn: Treasury, or Account No. xxxxxxxxxx, for the account of PennyMac Holdings, LLC Operating Account, Bank of America, N.A., ABA No. xxx xxx xxx, Attn: Treasury, as applicable, simultaneously with the delivery to Buyer pursuant of the Purchased Mortgage Loans relating to Section 27 or Section 30(d) in connection with such each Transaction.
(b) On or before such . With respect to the Purchased Mortgage Loans being sold by any Seller on a Purchase Date, the applicable such Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer Asset File for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andAsset.
Appears in 1 contract
Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan (or with respect to item (vii) below within five Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian (other than with respect to deliver a Trust Receipt on the Purchase Date concerning the receipt of, Wet Ink Mortgage Loans) the following original documents (collectivelycollectively the "MORTGAGE FILE"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements, endorsed on its face or by allonge attached thereto"Pay to the order of ________, without recourse" and signed in the name of the last endorsee (the "LAST ENDORSEE") by an authorized officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in blank and otherwise showing a completethe following form: "[the Last Endorsee], unbroken chain successor by merger to [name of endorsement from predecessor]"; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(or, if such ii) the original of any guarantee executed in connection with the Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,or copies certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, an irrevocable, binding the commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) or binder to issue such title insurance policy,the same; and
(Iviii) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage Loan,(if any).
(Le) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such With respect to each Mortgage Loan delivered by Seller to Buyer or in favor of any assignee prior to its designee (including the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing officeCustodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with evidence full power to complete and record the assignment of filing indicated thereon or certified by Mortgage, complete the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original endorsement of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note and take such other steps as may be necessary or desirable to enforce Buyer's rights against such Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to signLoans, an original the related Mortgage Files and the Servicing Records. Buyer shall notify Seller upon its use of such power of attorney attorney.
(f) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or other instrumentdirect that the Mortgage Files be deposited directly, andwith the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(g) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the inclusion of the related Purchased Mortgage Loan in a Transaction. Seller or its designee (including the Custodian) shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any Purchased Mortgage Loan by Seller.
Appears in 1 contract
Samples: Master Repurchase Agreement (First Alliance Corp /De/)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan which is not a Wet Ink Mortgage Loan (or with respect to item (vii) below within seven Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "Mortgage File"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements (or allonges), endorsed on its face or by allonge attached thereto"Pay to the order of ________, without recourse" and signed in the name of the last endorsee (the "Last Endorsee") by an authorized officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in blank and otherwise showing a completethe following form: "[the Last Endorsee], unbroken chain successor by merger to [name of endorsement from predecessor]"; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(or, if such ii) the original of any guarantee executed in connection with the Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is or a recordable document,copy certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, an irrevocable, binding the commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) or binder to issue such title insurance policy,the same; and
(Iviii) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage Loan,(if any).
(Le) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan In connection with each sale, transfer, conveyance and assignment, on or in favor of any assignee prior to the applicable seventh Business Day following each Purchase Date with respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, Seller and UCC-3 assignment financing statements shall deliver or cause to be delivered to the Custodian a complete Mortgage File. On the date on which the Buyer receives a Trust Receipt from the Custodian certifying that a complete Mortgage File with respect to a Wet Ink Mortgage Loan is in favor the possession of the applicable SellerCustodian, in each case such Wet Ink Mortgage Loan be deemed a standard Mortgage Loan (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(Oand no longer a Wet Ink Mortgage Loan) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andfor all
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer Administrative Agent, on behalf of Buyers, or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price by Buyers to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Administrative Agent, on behalf of the difference between (i) the Purchase Price for the Buyers, will provide Seller with a Power of Attorney to Seller, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Assets. Provided that no Event of Default shall have occurred and all feesbe continuing, costs such Power of Attorney to Seller shall be binding upon Administrative Agent, on behalf of Xxxxxx, and expenses including, without limitation, reasonable attorneys’ fees Administrative Agent’s successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such With respect to each Table Funded Purchased Asset, Seller shall cause the Bailee to deliver to Administrative Agent by no later than 1:00 p.m. (New York time), on the Purchase Date, by electronic transmission a true and complete copy of the related Mortgage Note, Mezzanine Note or Participation Certificate (as applicable) with assignment in blank (as applicable), loan agreement, Mortgage or Mezzanine Pledge Agreement and LLC certificate (as applicable), Title Policy, the Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement and Trust Receipt. In connection with the sale of each Purchased Asset, not later than 1:00 p.m. (New York time), two (2) Business Days prior to the related Purchase Date (or with respect to a Table Funded Purchased Asset not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the applicable Purchase Date), Seller shall deliver or cause Bailee to be delivered deliver (with a copy to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased LoanAdministrative Agent, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered behalf of Buyers) and released release to the CustodianCustodian (together with the Purchased Asset File Checklist), and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning (or in the case of a Table Funded Purchased Asset, not later than two (2) Business Days following the receipt by the Custodian) confirming the receipt of, the following original (or where indicated, copied) documents (collectivelyset forth on Schedule 2, the “Loan File”) pertaining to each of the Purchased Loans Assets identified in the Custodial Delivery Purchased Asset File Checklist delivered therewith; providedprovided that if Seller cannot deliver, that or cause to be delivered, any of the applicable original Purchased Asset Documents required to be delivered as originals (excluding the Mortgage Note, Mezzanine Note, the Assignment of Mortgage, the LLC certificate and, if applicable, the Participation Certificate, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a certificate photocopy thereof and an Officer’s Certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent such copy represents a true and correct copies copy of the originals original and shall use its best efforts to obtain and deliver such original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Administrative Agent, on behalf of Buyers, may consent in its sole discretion, so long as Seller is, as certified in writing to Administrative Agent, not less frequently than monthly, using its best efforts to obtain the original). After the expiration of such documents:
(A) the original executed Mortgage Note together with any applicable ridersbest efforts period, endorsed Seller shall deliver to Administrative Agent, on its face or by allonge attached theretobehalf of Xxxxxx, without recoursea certification that states, in blank and otherwise showing a completedespite Seller’s best efforts, unbroken chain of endorsement from the initial lender (or, if Seller was unable to obtain such original Mortgage Note has been lostdocument, an affidavit to such effect from the applicable and thereafter Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure shall have no further obligation to deliver the related original document. Notwithstanding the foregoing, Administrative Agent, on behalf of Buyers, shall, at its option, have the right to cancel the purchase of an Eligible Asset if all required originals have not been delivered as required in this Agreement.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Administrative Agent, on behalf of Buyers, and as Administrative Agent, on behalf of Buyers, shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Administrative Agent, on behalf of Buyers, a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Administrative Agent, on behalf of Buyers, or its designee (including Custodian), Seller shall execute an omnibus Power of Attorney to Administrative Agent, on behalf of Xxxxxx, irrevocably appointing Administrative Agent, on behalf of Buyers, its attorney-in-fact with full power to (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note, together Mezzanine Note, LLC certificate or Participation Certificate (as applicable) and (iii) take such other steps as may be necessary or desirable to enforce Administrative Agent, on behalf of Buyers, rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records. Seller shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with a copy Custodian to be held by Custodian on behalf of such Mortgage Note),
Administrative Agent, on behalf of Xxxxxx. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Administrative Agent, on behalf of Buyers, or its designee (Bincluding Custodian) is and shall be held in trust by Seller or its designee for the original benefit of Administrative Agent, on behalf of Xxxxxx, as the owner thereof. Seller or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Administrative Agent, together with an original on behalf of Buyers, or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Administrative Agent, on behalf of Buyers, for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the extent that such original is retained by the relevant public recording office) a copy terms and conditions of any intervening assignments this Agreement, of the Mortgage showing a complete chain related Purchased Asset to Administrative Agent, on behalf of assignment Buyers. Seller or its designee (including Custodian) shall release its custody of the Purchased Asset File only in accordance with written instructions from the originator Administrative Agent, on behalf of Buyers, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Administrative Agent, on behalf of Buyers, shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy Administrative Agent, on behalf of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable SellerBuyers, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andform and substance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, ownership of the Purchased Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price in immediately available funds to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer shall have the right to request Seller to provide an officer's certificate of Seller with respect to any copy of a document required to be delivered certifying that to its knowledge such represents a true and correct copy of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionoriginal.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectively, the “"Purchased Loan File”) "), pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided: With respect to each Purchased Loan which is a Whole Loan or with respect to a B Note a copy of the documents in (ii) - (xxiii) below to the extent the same exist and are available to Seller.
(i) The original Mortgage Note bearing all intervening endorsements, endorsed "Pay to the order of ______ without recourse" and signed in the name of the last endorsee (the "Last Endorsee") by an authorized Person (in the event that the applicable Seller shall deliver Purchased Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Purchased Loan was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: "[Last Endorsee], formerly known as [previous name]").
(ii) A copy of any guarantee executed in connection with the Mortgage Note (if any) together with an officer's certificate of an Authorized Representative of such Seller certifying that any such represents a true and correct copy of the original.
(iii) A copy of the Mortgage with evidence of recording thereon, or a copy thereof together with an officer's certificate of Seller certifying that such represents a true and correct copy of the original and that such original has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Property is located.
(iv) Copies of all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or copies thereof together with an officer's certificate of documents delivered Seller certifying that such represent true and correct copies of the originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of such documents:the jurisdiction where the Property is located.
(Av) the The original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourseAssignment of Mortgage, in blank blank, for each Purchased Loan secured by a Mortgage, in form and otherwise showing a complete, unbroken chain of endorsement from substance acceptable for recording and signed in the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor name of the Buyer for any costsLast Endorsee (in the event that such Purchased Loan was acquired by the Last Endorsee in a merger, losses the signature must be in the following form: "[Last Endorsee], successor by merger to [name of predecessor]"; in the event that such Purchased Loan was acquired or damages arising from originated while doing business under another name, the failure to deliver signature must be in the original Mortgage Notefollowing form: "[Last Endorsee], together with a copy of such Mortgage Noteformerly known as [previous name]"),.
(Bvi) the original or (to the extent that such original is retained by the relevant public recording office) a copy Copies of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any all intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) mortgage with evidence of recording indicated thereon thereon, or copies thereof together with an officer's certificate of Seller certifying that such represent true and correct copies of the originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Property is located.
(vii) Copies of any attorney's opinion of title and abstract of title or the original mortgagee title insurance policy, or if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s mortgagee title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding the irrevocable marked commitment (which may be an agreement to provide issue the same pursuant to binding escrow instructions executed by together with an authorized representative officer's certificate of Seller certifying that such represent true and correct copies of the title company) to issue such title insurance policy,originals.
(Iviii) a A copy of any ground lease security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Loan together with an officer's certificate of Seller certifying that such represent true and any ground lessor estoppels,correct copies of the originals.
(Jix) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original A copy of any escrow agreements,
(N) copies assignment of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller leases and UCC-3 assignment financing statements in favor of the applicable Sellerrents, in each case (unless the particular item has not been returned from the applicable filing office)if any, with evidence of recording thereon, or a copy thereof together with an officer's certificate of Seller, certifying that such copy represents a true and correct copy of the original that has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Property is located.
(x) Copies of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recording thereon.
(xi) A copy of the UCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing indicated thereon or copies thereof certified by the applicable filing office,Seller to have been sent for filing, and UCC assignments from Seller to Buyer or its designee, which UCC assignments shall be in form and substance acceptable for filing.
(Oxii) UCC-3 A copy of any environmental indemnity agreement (if any).
(xiii) A copy of any omnibus assignment financing statements in blank (if any).
(xiv) A copy of the disbursement letter from the applicable Mortgagor to the original mortgagee (if any).
(xv) A copy of the Mortgagor's certificate or title affidavit (if any).
(xvi) A survey of the Property (if any) as accepted by the title company for issuance of the Title Policy and a copy of the Title Policy.
(xvii) A copy of the Mortgagor's opinion of counsel (if any).
(xviii) A copy of any assignment of permits, contracts and agreements (if any).
(xix) A copy of any assignment of any interest rate cap agreement or other interest rate protection agreement entered into by the Mortgagor or its affiliates.
(xx) A copy of the fully executed intercreditor agreement or any other agreement that allocates assets among the parties, if any.
(xxi) A copy of any estoppel letter from the mortgagor.
(xxii) A copy of any executed servicing agreement.
(xxiii) A copy of the Purchase Agreement.
(xxiv) A copy of any loan agreement.
(xxv) any other documents or instruments necessary in the reasonable opinion of Buyer to consummate the sale of such Purchased Loan to Buyer subject to the terms of this Agreement or required to be delivered pursuant to the terms of this Agreement, or, if such Transaction is recharacterized as a secured financing, to create and perfect in favor of Buyer a valid perfected first priority security interest in such Purchased Loan. With respect to each Purchased Loan which is a Mezzanine Loan:
(i) The original Mezzanine Note signed in connection with the Purchased Loan bearing all intervening endorsements, endorsed "Pay to the order of _______ without recourse" and signed in the name of the Last Endorsee by an authorized Person (in the event that the Mezzanine Note was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Purchased Loan was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: "[Last Endorsee], formerly known as [previous name]").
(ii) The original of the loan agreement and the guarantee, if any, executed in connection with the Purchased Loan.
(iii) The original intercreditor or loan coordination agreement, if any, executed in connection with the Purchased Loan.
(iv) The original security agreement executed in connection with the Purchased Loan.
(v) Copies of all documents relating to the formation and organization of the borrower of such Purchased Loan, together with all consents and resolutions delivered in connection with such borrower's obtaining the Purchased Loan.
(vi) All other documents and instruments evidencing, guaranteeing, insuring or otherwise constituting or modifying or otherwise affecting such Purchased Loan, or otherwise executed or delivered in connection with, or otherwise relating to, such Purchased Loan, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property.
(vii) The assignment of Purchased Loan (in blank) sufficient to transfer to Buyer all of Seller's rights, title and interest in and to the Purchased Loan.
(viii) A copy of the borrower's opinion of counsel (if any).
(ix) A copy of the UCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing thereon or copies thereof certified by Seller to have been sent for filing, and UCC assignments from Seller to Buyer or its designee, which UCC assignments shall be in form and substance acceptable for filing.
(x) The pledge agreement and original certificates representing the pledged equity interests (if any).
(xi) Stock powers relating to each pledged equity interest, executed in blank, if an original stock certificate is provided.
(xii) Assignment of any management agreements, agreements among equity interest holders or other material contracts.
(xiii) If no original stock certificate is provided, evidence satisfactory to Buyer that the pledged ownership interests have been transferred to, or otherwise made subject to a first priority security interest in favor of, Seller.
(xiv) Copies of all loan documents and related closing documents pertaining to the closing of the senior indebtedness incurred or owed by the owner of the real property with respect to which the borrower of the Mezzanine Loan has pledged its ownership interests, whether directly or indirectly through intermediate entities, including without limitation the organizational documents of such owner together with an officer's certificate of Seller certifying that such represent true and correct copies of the originals.
(xv) An assignment of any interest rate cap agreement or other interest rate protection agreement entered into by the borrower under the Purchased Loan or its affiliates with respect to the Purchased Loan.
(xvi) the original servicing agreement, if any, executed in connection with the Purchased Loan.
(xvii) A copy of the Purchase Agreement.
(xviii) A copy of the borrower's fee title insurance policy in respect of the mezzanine loan and a copy of the related survey. With respect to each Purchased Loan which is of the type described in clause (iv) of the definition of Eligible Loan, any of the documentation referred to above in this Section 6(b) of this Agreement which is determined by Buyer to be necessary to effectuate the sale, transfer, conveyance and assignment of such Purchased Loan subject to the terms of this Agreement. In addition, with respect to each Purchased Loan, Seller shall deliver an instruction letter from Seller to the servicer with respect to such Purchased Loan, instructing the servicer to remit all sums required to be remitted to the holder of such Purchased Loan under the loan documents to the Depository for deposit in the Collection Account. From time to time, Seller shall forward to the Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, the Custodian shall hold such other documents as Buyer shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in blank,
time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an officer's certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to the Custodian promptly when they are received. With respect to all of the Purchased Loans delivered by Seller to Buyer or its designee (Pincluding the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit V attached hereto irrevocably appointing Buyer its attorney-in-fact with full power, after the occurrence and during the continuation of an Event of Default to (i) an original complete and record the Assignment of any subordination agreement or intercreditor agreement,
Mortgage, (Qii) if complete the endorsement of the Mortgage Note or Mortgage was executed pursuant Mezzanine Note and (iii) take such other steps as may be necessary or desirable to enforce Buyer's rights against such Purchased Loans and the related Purchased Loan Files and the Servicing Records, Buyer shall deposit the Purchased Loan Files representing the Purchased Loans, or direct that the Purchased Loan Files be deposited directly, with the Custodian. The Purchased Loan Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Loan Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a power copy of attorney the Purchased Loan File and the originals of the Purchased Loan File not delivered to Buyer or other instrument that authorized its designee. The possession of the Purchased Loan File by Seller or empowered its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Loan, and such person retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to sign, an original reflect clearly the sale of such power the related Purchased Loan to Buyer. Seller or its designee (including the Custodian) shall release its custody of attorney or other instrument, andthe Purchased
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a power of attorney, substantially in the difference between form attached as Exhibit II-2 hereto, allowing Seller to administer, operate and service such Purchased Assets. Provided that no Event of Default shall have occurred and be continuing, the power of attorney (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitationsubject to the terms of this Agreement, reasonable attorneys’ fees the exercise of any voting or similar rights by Seller) shall be binding upon Buyer and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such TransactionXxxxx’s successors and assigns.
(b) On With respect to each Table Funded Purchased Asset (or before such any Transaction for which Buyer approves the utilization of a Bailee), Seller shall cause Bailee to deliver to Buyer by no later than 1:00 p.m. (New York time), on the Purchase Date, in writing (including by email transmission), a true and complete copy of the related Mortgage Note, Mezzanine Note, LLC Certificate or Participation Certificate (as applicable), the Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement. In connection with the sale of each Purchased Asset, not later than 1:00 p.m. (New York time), two (2) Business Days prior to the related Purchase Date (or with respect to a Table Funded Purchased Asset (or any Transaction for which Buyer approves the utilization of a Bailee) not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the applicable Purchase Date, Seller shall deliver or cause Bailee to be delivered deliver (with a copy to Buyer or its designee Buyer) and release to Custodian (together with the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianAsset File Checklist), and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning (or in the case of a Table Funded Purchased Asset (or any Transaction for which Buyer approves the utilization of a Bailee), not later than two (2) Business Days following the receipt by Custodian) confirming the receipt of, the following original (or where indicated below, copied) documents, to the extent applicable, with respect to each Purchased Asset identified in the Purchased Asset File Checklist delivered therewith (all of the documents (listed below, with respect to any Purchased Asset, collectively, the “Purchased Asset Documents”): With respect to each Purchased Asset that is a Mortgage Loan Fileor a Participation Interest, the following documents, as applicable:
(i) the original Mortgage Note bearing all intervening endorsements, endorsed “Pay to the order of “__________” without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) pertaining to each by an authorized Person of the Purchased Loans identified Last Endorsee (in the Custodial Delivery delivered therewith; provided, event that the Purchased Asset was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Asset was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”) or a lost note affidavit in a form reasonably approved by Buyer, with a copy of the applicable Seller shall deliver Mortgage Note attached thereto;
(ii) the original loan agreement and guaranty, if any, executed in connection with the Purchased Asset;
(iii) the original Mortgage with evidence of recording thereon, or a certificate true and correct copy of an Authorized Representative the original that has been submitted for recordation in the appropriate governmental recording office of such Seller certifying that any copies the jurisdiction where the Mortgaged Property is located;
(iv) with respect to the Mortgage, the originals of documents delivered represent all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or true and correct copies of the originals that have each been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located;
(v) the original Assignment of Mortgage in blank for each Purchased Asset, in form and substance acceptable for recording and signed in the name of the Last Endorsee (in the event that the Purchased Asset was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Asset was acquired or originated while doing business under another name, the signature must be in the following form: “[Last Endorsee], [formerly known] or [doing business] as [previous name]”);
(vi) [reserved];
(vii) [reserved];
(viii) the originals of all intervening assignments of mortgage (if any) with evidence of recording thereon, or copies thereof;
(ix) the original Title Policy or, if the original Title Policy has not been issued, a copy of the irrevocable marked commitment to issue the same;
(x) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Asset;
(xi) the original Assignment of Leases, if any, with evidence of recording thereon, or a true and correct copy of the original that has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located;
(xii) the originals of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recording thereon, or copies thereof;
(xiii) a copy of the UCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing thereon or copies thereof together with evidence that such UCC financing or continuation statements (or such equivalent) have been sent for filing, and UCC assignments in blank, which UCC assignments (or such equivalent) shall be in form and substance acceptable for filing in the applicable jurisdictions;
(xiv) the original environmental indemnity agreement or similar guaranty or indemnity, whether stand-alone or incorporated into the applicable loan documents (if any);
(xv) the original omnibus assignment in blank or such other documents necessary and sufficient to transfer to Buyer all of Seller’s right, title and interest in and to the Purchased Asset (if any);
(xvi) a Survey of the Mortgaged Property (if any) as accepted by the title company for issuance of the Title Policy;
(xvii) a copy of all servicing agreements related to such Purchased Asset;
(xviii) a copy of the Mortgagor’s opinions of counsel;
(xix) [reserved];
(xx) in the case of a Purchased Asset that is a Participation Interest, the original Participation Certificate evidencing such Participation Interest together with an assignment in blank;
(xxi) in the case of a Purchased Asset that is a Participation Interest, the participation agreement and any other documents evidencing such Participation Interest;
(xxii) an assignment of any management agreements, permits, contracts and other material agreements (if any);
(xxiii) the original or a copy of the intercreditor or co-lender agreement (if any) executed in connection with the Purchased Asset to the extent the subject borrower, or an affiliate thereof, has encumbered its assets with senior, junior or similar financing, whether mortgage financing or mezzanine loan financing;
(xxiv) copies of all documents relating to the formation and organization of the related obligor under such Purchased Asset, together with all consents and resolutions delivered in connection with such obligor’s obtaining such Purchased Asset; and
(xxv) all other material documents and instruments evidencing, guaranteeing, insuring, securing or modifying such Purchased Asset, executed and delivered in connection with, or otherwise relating to, such Purchased Asset, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property. With respect to each Purchased Asset that is a Mezzanine Loan, the following documents, as applicable:
(Ai) the original executed Mortgage Mezzanine Note together with any relating to such Mezzanine Loan, which Mezzanine Note shall (A) be endorsed (either on the face thereof or pursuant to a separate allonge) by the most recent endorsee prior to the applicable riders, endorsed on its face or by allonge attached theretoSeller, without recourse, in blank to the order of such Seller and otherwise showing further reflect a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit related originator to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) be accompanied by a separate allonge pursuant to which such Seller has endorsed such Note, without recourse, in blank;
(ii) true and correct copies of the original related intercreditor agreement (if any) and the related Mezzanine Pledge Agreement and all other material documents (including, without limitation, opinions of counsel) or agreements relating to such Mezzanine Loan or affecting the rights (including, without limitation, the security interests) of any holder thereof;
(iii) as applicable, true and correct copies of any assignment, assumption, modification, consolidation or extension made prior to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator related Purchase Date in respect of such Mortgage Loan Mezzanine Note or any document or agreement referred to the applicable Seller,
in clause (Cii) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modifiedabove, in each case case, if the document or agreement being assigned, assumed, modified, consolidated or extended is recordable, with evidence of recording thereon (unless the particular item has not been returned from the applicable recording office);
(iv) with evidence as applicable, an original assignment of recording indicated thereon each agreement referred to in clause
(v) above, in recordable form if the instrument agreement being modified assigned is a recordable document,, executed in blank by the applicable Seller;
(Gvi) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loanif certificated, each LLC Certificate, together with its endorsements oran undated power covering each such certificate, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions duly executed by an authorized representative of the title company) to issue such title insurance policy,in blank;
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(Nvii) copies of any all UCC financing statements filed in favor of the originator respect of such Mortgage Mezzanine Loan or in favor of any assignee prior to the applicable Seller related Purchase Date, including all amendments and UCC-3 assignment financing statements in favor of the applicable Sellerassignments related thereto, if any, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by in the applicable filing office,jurisdiction indicated thereon;
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(Pviii) an original assignment of each UCC financing statement filed in respect of such Mezzanine Loan, prepared in blank, in form suitable for filing;
(ix) the related original omnibus assignment, if any, executed in blank;
(x) the original Title Policy for such Mezzanine Loan (provided that any exception to this item shall note whether the related Purchased Asset File includes a “marked up” commitment or proforma policy marked as binding and countersigned or evidenced as binding by an escrow letter or closing instructions), if any, together with an original mezzanine endorsement, if any, and date down to owner’s policy, if any;
(xi) any additional documents identified on the related Purchased Asset File Checklist delivered to Custodian in accordance with Article II of this Agreement; and
(xii) any additional documents required to be added to the related Purchased Asset File pursuant to this Agreement. provided that if Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under the provisions above (excluding the Mortgage Note, Assignment of Mortgage, Mezzanine Note and LLC Certificate, as applicable, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and, unless waived by Buyer, an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original. Seller shall then, (A) use commercially reasonable efforts to obtain and deliver the original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using commercially reasonable efforts to obtain the original), (B) after the expiration of such best efforts period, deliver to Buyer a certification that states, despite Seller’s best efforts, Xxxxxx was unable to obtain such original document and (C) thereafter have no further obligation to deliver the related original document.
(c) From time to time, Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any subordination agreement such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or intercreditor agreement,
are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (Q) if the Mortgage Note or Mortgage was executed pursuant to a including Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit II-1 attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note, Mezzanine Note, LLC Certificate or Participation Certificate (as applicable) and (iii) take such other instrument that authorized steps as may be necessary or empowered desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records; which power, in each case, Xxxxx agrees will only be exercised during the continuance of an Event of Default. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian, on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee (including Custodian) is and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Purchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such person retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to signreflect clearly the transfer, an original subject to the terms and conditions of this Agreement, of the related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of the Purchased Asset File only in accordance with written instructions from Buyer, unless such power release is required as incidental to the servicing of attorney the Purchased Assets or other instrumentis in connection with a repurchase of any Purchased Asset by Seller or is pursuant to the order of a court of competent jurisdiction.
(d) On the date of this Agreement, andBuyer shall have received all of the following items and documents, each of which shall be satisfactory to Buyer in form and substance:
Appears in 1 contract
Samples: Tenth Omnibus Amendment to Transaction Documents (BrightSpire Capital, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Initial Purchase Date for each Transaction, ownership of the related Purchased Loans Loan shall be transferred to Buyer or its designee (including the Custodian) against the Buyer’s simultaneous transfer of the Initial Purchase Price to an account the Funding Account, provided that the U.S. federal, state and local income tax characterization of the transfer shall be governed by Section 27(e). On each Subsequent Purchase Date, as part of the same Transaction that occurred on the Initial Purchase Date, Buyer will purchase the related increase in the Outstanding Principal Balance of such Purchased Loan resulting from the applicable Seller, specified in ’s Subsequent Advance to or for the Confirmation relating to such Transaction benefit of the difference between (i) related Underlying Obligor, subject to the Purchase Price for the Purchased Loan(s) minus (ii) any terms and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to conditions of Section 27 or Section 30(d) in connection with such Transaction3(k).
(b) On or before such [Reserved].
(c) For each Purchased Loan, no later than 1:00 p.m. at least three (3) Business Days prior to the related Initial Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee (i) the information contained on Appendix I to the Confirmation, (ii) a Loan File Checklist and (iii) a Custodial Delivery together with originals or copies of all documents in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) File pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided.
(d) From time to time, that but in no event later than three (3) Business Days following execution, the applicable Seller shall deliver forward to the Buyer additional originals or copies of additional documents evidencing any assumption, modification, amendment, consolidation, extension substitution or restatement of or waiver or consent with respect to a certificate Purchased Loan approved (if required) in accordance with the terms of this Agreement, and upon receipt of any such documents and such other documents, the Buyer shall hold such documents and such other documents as part of the related Loan File. With respect to all of the Purchased Loans delivered by any Seller to Buyer or its designee, such Seller shall execute an omnibus power of attorney substantially in the form of Exhibit V attached hereto irrevocably appointing Buyer Agent its attorney-in-fact, which appointment is irrevocable and coupled with an interest, with full power following the occurrence and during the continuance of an Authorized Representative Event of Default to take such Seller certifying that any copies steps as may be necessary or desirable to enforce Buyer Agent’s rights against such Purchased Loans and the related Loan Files and the Servicing Records and to create a first priority perfected security interest in favor of documents delivered represent true and correct copies Buyer Agent for the benefit of Buyer, as secured party, therein. Any Loan Document constituting part of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Loan File not delivered to Buyer or its face or designee is and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Each Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments Loan File. Any originals of the Mortgage showing Loan Documents that come into the possession of a complete chain Seller or any Affiliate shall be forwarded to Buyer or its designee as promptly as possible pursuant to a Custodial Delivery. The possession of assignment from a Loan File by any Seller or its designee shall be in trust for Buyer for the originator sole purpose of servicing the related Purchased Loan, and such retention and possession by such Seller or its designee is in a custodial capacity only. The books and records (including any computer records or tapes) of such Mortgage Loan Seller or its designee shall be marked appropriately to reflect clearly the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original sale of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor Purchased Loan to Buyer. Such Seller shall release its custody of the originator Loan File to any Person other than the Buyer only in accordance with written instructions from Buyer. Unless an Event of such Mortgage Loan or in favor of any assignee prior Default shall have occurred and be continuing, subject to Article 25, each Seller shall exercise all voting and corporate rights with respect to the applicable Seller Purchased Loans; provided, however, that Sellers shall be required to obtain Buyer’s prior written consent with respect to any vote or corporate right that constitutes a Material Purchased Loan Modification. Upon the occurrence and UCC-3 assignment financing statements in favor during the continuation of an Event of Default, Buyer shall be entitled to exercise all voting and corporate rights with respect to the applicable Purchased Loans without regard to any Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and’s instructions.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract (Starwood Property Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY.
(a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: MLMCI, Account No. 00000000, for the account of MLMCI Matchbook, Bankers Trust, N.Y., ABA# 021 001 033, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable Seller (or as otherwise directed by the Seller): Bankers Trust Company, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price Account No. 00000000, ABA No. 000000000, for the account of LA ASSET BASED, REF: ELOAN/XXXXXXX XXXXX CTOL 38285. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
Samples: Master Repurchase Agreement
PAYMENT, TRANSFER AND CUSTODY. Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: MLMCI, Account No. 00000000, for the account of MLMCI Matchbook, Bankers Trust, N.Y., ABA# 021 001 033, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (a) and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account. On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable Seller (or as otherwise directed by the Seller): Bankers Trust Company, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price Account No. 00000000, ABA No. 000000000, for the account of LA ASSET BASED, REF: ELOAN/XXXXXXX XXXXX CTOL 38285. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Seller in and to the form attached hereto as Exhibit IVPurchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets. In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer; Account No. GLA 111569, for the account of CDC Mortgage Capital, Inc., Bank of New York, ABA No. 021000018, Attn: Eric Seyffer, not later than 3 p.m., New York City xxxx, on txx xxxx xx xhich such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for as set forth in Section 11 of the Custodial and Disbursement Agreement not later than 6 p.m., New York City time, simultaneously with the delivery to Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction. Seller hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including Custodian) without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including Custodian) (i) the Custodian, Custodial Identification Certificate and shall cause (ii) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Disbursement Agreement.
(Ad) the original executed Any Mortgage Note together with any applicable riders, endorsed on Files not delivered to Buyer or its face or designee (including Custodian) are and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan File not delivered to the applicable Seller,
Buyer or its designee (C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording officeincluding Custodian),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions . The possession of the Mortgage have been modifiedFile by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in each case (unless the particular item has not been returned a custodial capacity only. Each Mortgage File retained or held by Seller or its designee shall be segregated on Seller's books and records from the applicable recording office) with evidence other assets of recording indicated thereon if Seller or its designee and the instrument being modified is a recordable document,
(G) originals books and records of all modification agreements in those instances in which Seller or its designee shall be marked appropriately to reflect clearly the terms sale of the related Purchased Asset to Buyer. Seller or provisions its designee shall release its custody of the Mortgage Note have been modified,
(H) File only in accordance with written instructions from Buyer, unless such release is required as incidental to the original policy servicing of the Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (American Home Mortgage Holdings Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 00000000, for the account of Xxxxxxx Xxxxx Mortgage Company; Citibank, N.A., New York, ABA No. 02100089, Attn: Xxxx Xxxxxxxx and Xxxx Xxxxxx, not later than 3:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable SellerSellers (or as otherwise directed by the Sellers) with respect to Mortgage Loans, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price Account No. 00000000, NYLTD Funds Control — Stars West, for the account of New Century Operating Account Deutsche Bank National Trust Company, ABA No. 000000000, Attn: Xxxx Xxxx, not later than 4:30 p.m. New York City time. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, such Seller hereby sells, transfers, conveys and assigns to the applicable Seller shall deliver or cause to be delivered to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 144-089059, for the account of Gestation, JPMorgan Chase Bank, N.A., ABA No. 000-00-000, Attn: Xxxxxxx Xxxxxx, not later than 4:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each of the Sellers acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between Purchase Price as follows:
(i) to the Purchase Price for account designated in any applicable security release certification to the extent any of the Purchased Loan(s) minus Mortgage Loans are subject to another warehouse line and (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer amounts not remitted pursuant to Section 27 or Section 30(d) in connection clause (i), to the Sellers: Account No. 646-723251, Ref: MortgageIT, Inc., HSBC, Bank, ABA No. 000000000, simultaneously with such the delivery to the Buyer of the Purchased Mortgage Loans relating to each Transaction.
(b) On or before such . With respect to the Purchased Mortgage Loans being sold by a Seller on a Purchase Date, the applicable each Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
Samples: Master Repurchase Agreement (MortgageIT Holdings, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each Transaction, ownership of the Purchased Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of Master Seller (for the benefit of the applicable Series Seller, ) specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Purchased Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such The original Mortgage Note has been lost(and if applicable, an affidavit one or more allonges) bearing all intervening endorsements, endorsed “Pay to such effect from the applicable Seller or another prior holder order of _________ without recourse” and a customary indemnity from signed in the applicable Seller in favor name of the Buyer for any costslast endorsee (the “Last Endorsee”) by an authorized Person (in the event that the Purchased Loan was acquired by the Last Endorsee in a merger, losses the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Loan was acquired or damages arising from originated by the failure to deliver Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], formerly known as [previous name]”).
(ii) An original of each guarantee executed in connection with the Mortgage Note (if any).
(iii) The original Mortgage with evidence of recording thereon, or a copy thereof together with an officer’s certificate of Seller certifying that such represents a true and correct copy of the original Mortgage Noteand, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by has been submitted for recordation in the relevant public appropriate governmental recording office) a copy office of the Mortgage, together with an original or (to jurisdiction where the extent that such original Mortgaged Property is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,located.
(Civ) the original The originals of all assumption, modification, consolidation or (to the extent that such original is retained by the relevant public recording office) a copy extension of any Assignment of Leases mortgage agreements (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording officeany) with evidence of recording indicated thereon if thereon, or copies thereof together with an officer’s certificate of Seller certifying that such represent true and correct copies of the instrument being modified originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is a recordable document,located.
(Gv) The original Assignment of Mortgage in blank for each Purchased Loan, in form and substance acceptable for recording in the relevant jurisdiction, and in form and substance otherwise acceptable to Buyer and signed in the name of the Last Endorsee (in the event that the Purchased Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Purchased Loan was acquired or originated while doing business under another name, the signature must be in the following form: “[Last Endorsee], formerly known as [previous name]”).
(vi) The originals of all modification agreements in those instances in which the terms intervening assignments of mortgage (if any) with evidence of recording thereon, or provisions copies thereof together with an officer’s certificate of Seller certifying that such represent true and correct copies of the Mortgage Note originals and that such originals have each been modified,submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(Hvii) The original attorney’s opinion of title and abstract of title or the original policy or certificate of lender’s mortgagee title insurance issued in connection with policy, or if the origination of such Mortgage Loan, together with its endorsements or, if such original mortgagee title insurance policy has not been issued, an irrevocable, the binding commitment (which may be an agreement pro forma policy attached to provide the same pursuant to binding Purchased Loan closing escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,letter.
(Iviii) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an The original of any guaranty of payment under such Mortgage Loan,security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Loan (if any).
(Lix) an The original assignment of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller leases and UCC-3 assignment financing statements in favor of the applicable Sellerrents, in each case (unless the particular item has not been returned from the applicable filing office)if any, with evidence of filing indicated thereon recording thereon, or certified by a copy thereof together with an officer’s certificate of Seller, certifying that such copy represents a true and correct copy of the applicable filing office,original and that such original has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(Ox) UCC-3 The originals of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recordation, or submission for recordation, from the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located.
(xi) A copy of the UCC financing statements stamped with the filing and/or recordation information from the applicable recording office, and all necessary UCC continuation statements with evidence of filing thereon, and UCC assignments, which UCC assignments shall be in form and substance acceptable for filing.
(xii) An environmental indemnity agreement (if any).
(xiii) An omnibus assignment in blank (if any).
(xiv) For any Senior Interest which is a Participation Interest, the original participation certificate evidencing such Senior Interest endorsed “Pay to the order of ______ without recourse” and signed in the name of the Last Endorsee by an authorized Person (in the event that the Purchased Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event that the Senior Interest was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: “[Last Endorsee], formerly known as [previous name]”).
(xv) For any Senior Interest, the original or a copy of the participation agreement or co-lender agreement, as applicable, and all other Senior Interest Documents executed in connection with the Senior Interest.
(xvi) for any Senior Interest, the original Senior Interest Side Letter, if applicable.
(xvii) The original or a copy of the intercreditor or co-lender agreement (if any) executed in connection with the Purchased Loan to the extent the subject borrower, or an affiliate thereof, has encumbered its assets with mezzanine or other subordinate financing in addition to the Purchased Loan.
(xviii) Mortgagor’s certificate or title affidavit (if any), to the extent in Seller’s possession.
(xix) A survey of the Mortgaged Property (if any) as accepted by the title company for issuance of the mortgagee title policy.
(xx) A copy of the Mortgagor’s, and (if applicable) any guarantor’s, opinion of counsel (if any).
(xxi) An assignment of permits, contracts and agreements (if any).
(xxii) The original of all letters of credit issued and outstanding in connection with such Purchased Loan, with any modifications, amendments or endorsements necessary to permit Buyer to draw upon them when and if it is contractually permitted to do so pursuant to this Agreement (if any).
(xxiii) Copies of all documents and agreements evidencing and/or relating to any applicable Approved Hedging Transaction together with a duly executed assignment thereof from Seller (or the Affiliate of Seller that is party to such Approved Hedging Transaction) to Buyer in form and substance reasonably acceptable to Buyer.
(c) In addition, with respect to each Purchased Loan, Seller shall deliver an instruction letter from Seller to the borrower under each Purchased Loan and/or to the sub-servicer with respect to each Purchased Loan, instructing the borrower and/or to the sub-servicer, as applicable, to remit all sums required to be remitted to the holder of the Purchased Loan under the related Purchased Loan Documents to the Servicer for deposit in the Applicable Servicer Account or as otherwise directed in a written notice signed by Seller and Buyer. If the borrower under any Purchased Loan remits any sums required to be remitted to the holder of such Purchased Loan under the related Purchased Loan Documents to Seller or its Affiliate, Seller shall, within one (1) Business Day after receipt thereof, (i) remit such sums (other than Underlying Purchased Loan Reserves) to the Depository for deposit in the Cash Management Account as set forth in Section 5(b) hereof or as otherwise directed in the written notice signed by Seller and Buyer, and (ii) deliver (or cause Servicer to deliver) an additional instruction letter from Seller or Servicer, as applicable, to the borrower under the applicable Purchased Loan, instructing the borrower to remit all sums required to be remitted to the holder of the Purchased Loan under the related Purchased Loan Documents to the Servicer for deposit in the Applicable Servicer Account or as otherwise directed in a written notice signed by Seller and Buyer.
(d) From time to time, Seller shall forward to the Custodian additional original documents or additional copies of documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, the Custodian shall hold such other documents as Custodian shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in blank,
time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an officer’s certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Buyer or its designee promptly when they are received. With respect to all of the Purchased Loans delivered by Seller to Buyer or its designee (Pincluding the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit V attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to, during the continuance of an Event of Default, (i) an original complete and record the Assignment of any subordination agreement or intercreditor agreement,
Mortgage, (Qii) if complete the endorsement of the Mortgage Note and (iii) take such other steps as may be reasonably necessary or Mortgage was executed pursuant desirable to enforce Buyer’s rights against such Purchased Loans and the related Purchased Loan Files and the Servicing Records. Buyer shall deposit the Purchased Loan Files representing the Purchased Loans, or direct that the Purchased Loan Files be deposited directly, with the Custodian. The Purchased Loan Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Loan Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a power copy of attorney the Purchased Loan File and the originals of the Purchased Loan Files not delivered to Buyer or other instrument its designee. The possession of the Purchased Loan Files by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Loan, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Loan to Buyer. Seller or its designee (including the Custodian) shall release its custody of the Purchased Loan Files only in accordance with written instructions from Buyer and in accordance with the provisions of the Custodial Agreement, unless such release is required as incidental to the servicing of the Purchased Loans, is in connection with a repurchase of any Purchased Loan by Seller or as otherwise required by law.
(e) Unless an Event of Default shall have occurred and be continuing, Seller shall exercise all voting, consent, corporate and decision-making rights with respect to the Purchased Loans, provided that authorized Seller shall not enter into any amendment or empowered modification, or grant any waivers under, the Purchased Loan Documents for any Purchased Loan, to the extent that such person amendment, modification or waiver constitutes a Significant Modification with respect to signsuch Purchased Loan, without Buyer’s prior written consent thereto, which consent may be given or withheld by Buyer in its sole and absolute discretion. Upon the occurrence and during the continuation of an original Event of such power of attorney or other instrumentDefault, andBuyer shall be entitled to exercise all voting, consent, corporate, and decision-making rights with respect to the Purchased Loans without regard to Seller’s instructions.
Appears in 1 contract
Samples: Master Repurchase Agreement (LoanCore Realty Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 3:00 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for by Buyer to Seller, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 6:00 p.m., New York City time, simultaneously with the delivery by the Custodian to Buyer of the Trust Receipts with respect to the Purchased Loan(s) minus (ii) any Assets relating to each Transaction. Seller hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including the Custodial Delivery Custodian), subject to the terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items and Additional Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including the Custodian, and shall cause ) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Agreement.
(Ad) Any Mortgage Asset Files not delivered to Buyer or its designee (including the original executed Mortgage Note together with any applicable riders, endorsed on its face or Custodian) are and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgageMortgage Asset File and the originals of the Mortgage Asset File not delivered to Buyer or its designee (including the Custodian). The possession of the Mortgage Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by Seller or (its designee is in a custodial capacity only. Each Mortgage Asset File retained or held by Seller or its designee shall be segregated on Seller’s books and records, to the extent that such original is retained by possible, from the relevant public recording office) a copy other assets of any intervening assignments Seller or its designee and the books and records of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to Buyer. Seller or its designee shall release its custody of the Mortgage showing a complete chain of assignment Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (CBRE Realty Finance Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 00000000, for the account of Xxxxxxx Xxxxx Mortgage Company; Reference: First FNLC Warehouse; Citibank, N.A., ABA No. 000000000, not later than 3:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable Seller (or as otherwise directed by the Seller): Account No. 2000006797357, specified in for the Confirmation account of First NLC Financial Services, LLC, Wachovia Bank, N.A., ABA No. 000000000, not later than 3:00 p.m. New York City time, simultaneously with the delivery to the Buyer of the Purchased Mortgage Loans relating to such Transaction of the difference between (i) the Purchase Price for each Transaction. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
Samples: Master Repurchase Agreement (First NLC Financial Services Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan which is not a Wet Ink Mortgage Loan (or with respect to item (vii) below within seven Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectivelycollectively the "MORTGAGE FILE"), the “Loan File”) pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements (or allonges), endorsed on its face or by allonge attached thereto"Pay to the order of ________, without recourse" and signed in the name of the last endorsee (the "LAST ENDORSEE") by an authorized officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in blank and otherwise showing a completethe following form: "[the Last Endorsee], unbroken chain successor by merger to [name of endorsement from predecessor]"; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(or, if such ii) the original of any guarantee executed in connection with the Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is or a recordable document,copy certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, the commitment or binder to issue the same; and
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any).
(e) In connection with each sale, transfer, conveyance and assignment, on or prior to the seventh Business Day following each Purchase Date with respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, Seller shall deliver or cause to be delivered to the Custodian a complete Mortgage File. On the date on which the Buyer receives a Trust Receipt from the Custodian certifying that a complete Mortgage File with respect to a Wet Ink Mortgage Loan is in the possession of the Custodian, such Wet Ink Mortgage Loan be deemed a standard Mortgage Loan (and no longer a Wet Ink Mortgage Loan) for all purposes hereunder, including, without limitation, determination of the Pricing Spread and compliance with subsection (zz) of Exhibit V.
(f) With respect to each Mortgage Loan delivered by Seller to Buyer or its designee (including the Custodian), Seller shall have executed an irrevocableomnibus power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, binding commitment (which complete the endorsement of the Mortgage Note and take such other steps as may be an agreement necessary or desirable to provide enforce Buyer's rights against such Mortgage Loans, the same pursuant to binding escrow instructions executed by an authorized representative of related Mortgage Files and the title company) to issue such title insurance policy,Servicing Records.
(Ig) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,
Purchased Mortgage Loan to Buyer. Seller or its designee (Kincluding the Custodian) an original shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Purchased Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 3:00 p.m., New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for by Buyer to Seller, in accordance with the wiring instructions set forth on Schedule 2 hereto, not later than 6:00 p.m., New York City time, simultaneously with the delivery by the Custodian to the Buyer of the Trust Receipts with respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable Assets relating to Buyer pursuant to Section 27 or Section 30(d) in connection with such each Transaction.
(b) On or before such Purchase Date, the . The applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodial Delivery Custodian), subject to the terms of this Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to Buyer or its designee (including the Custodian, and shall cause ) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Agreement.
(Ad) Any Mortgage Asset Files not delivered to Buyer or its designee (including the original executed Mortgage Note together with any applicable riders, endorsed on its face or Custodian) are and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the benefit of Buyer as the owner thereof. The applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgageMortgage Asset File and the originals of the Mortgage Asset File not delivered to Buyer or its designee (including the Custodian). The possession of the Mortgage Asset File by the applicable Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by such Seller or (its designee is in a custodial capacity only. Each Mortgage Asset File retained or held by the applicable Seller or its designee shall be segregated on such Seller's books and records, to the extent that possible, from the other assets of such original is retained by Seller or its designee and the relevant public recording office) a copy books and records of any intervening assignments such Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to Buyer. The applicable Seller or its designee shall release its custody of the Mortgage showing a complete chain of assignment Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if Purchased Asset by such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (Gramercy Capital Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans and all other Repurchase Assets shall be transferred by the applicable Seller to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of designated by the applicable Seller, Seller specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase DateIn connection with the sale of each Purchased Loan, the in accordance with Section 3(c):
(i) The applicable Seller shall deliver (with an electronic copy to Buyer) and release to Custodian the following original (or cause where indicated, copied) documents, to be delivered the extent applicable and subject to Buyer or its designee clause (iv) below (collectively, the “Purchased Loan File”), together with a Custodial Delivery in the form attached hereto as Exhibit IV. In connection Certificate provided to Custodian (with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior an electronic copy to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the CustodianBuyer), and shall cause the Custodian to deliver a Trust Receipt Receipt, inventory report and Exception Report to Buyer on the Purchase Date concerning confirming the receipt of, the following documents (collectively, the “of such Purchased Loan File”) Documents pertaining to each of the Purchased Loans identified in the Custodial Delivery Certificate delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable ridersNote, bearing all intervening endorsements, endorsed on its face or by allonge attached theretoan Authorized Representative of the originator “pay to the order of, without recourse” to blank, in blank and otherwise showing a complete, unbroken chain of endorsement from or if the initial lender (or, if such original Mortgage Note has been lostlost or destroyed, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),Note together with a lost note affidavit;
(B) the original or a copy of any guarantee of which the Custodian has been specifically notified (to as identified in the extent that such Mortgage Loan Schedule accompanying delivery of the related Mortgage Loan File) in connection with the Mortgage Note (if any);
(C) (A) the original is retained by the relevant public recording office) Mortgage or a copy of the Mortgage, together Mortgage with an original or evidence of recording thereon; and (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(CB) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment the recorded power of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available attorney, if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney with evidence of recording thereon, if recordation is required;
(D) originals, or other instrument copies of any intervening Assignments of Mortgage with evidence of recording thereon; provided that authorized if any such Assignment of Mortgage is in the process of recordation, such Assignment of Mortgage may be evidenced by a certified copy;
(E) the originals or empowered such person to signcopies of all assumption, modification, consolidation or extension agreements of which the Custodian has been specifically notified (as identified in the Mortgage Loan Schedule accompanying delivery of the related Mortgage Loan File) , with evidence of recording thereon if noted as required on the Mortgage Loan Schedule;
(F) (A) for each Mortgage Loan that is not registered with the Mortgage Electronic Registration System, Inc. (“MERS”) an original Assignment of the Mortgage prepared in blank, which, in each case, shall be in form and substance acceptable for recording, and (B) in the case of each Mortgage Loan registered with MERS, the original Mortgage or copy thereof as provided in (iii) above, noting the presence of the Mortgage Identification Number (the “MIN”) and including either language indicating that the Mortgage Loan is a Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for the originator of such power loan and its successors and assigns (a “MOM Loan”) or if the Mortgage Loan was not a MOM Loan at origination, the assignment thereof to MERS, together with (x) an assignment of attorney such Mortgage Loan registered with MERS from MERS to the originator and (y) the original assignment of such Mortgage Loan registered with MERS from the originator in blank; and
(G) the original or a copy of the Title Policy or attorney’s opinion of title and abstract of title, together with all endorsements or riders that were issued with or subsequent to the issuance of such policy (if any), insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the mortgagor.
(ii) The applicable Seller shall deliver the original executed Mortgage Note bearing all intervening endorsements, the original or copy of the loan agreement, the original mortgage and any intervening assignments of mortgage with evidence of recording thereon (or a certified true copy of a mortgage or assignment out for recording) and the original Title Policy (as required by clause (b)(i)(A), (C), (D) and (G) of this Section 7) for each Purchased Loan by no later than the related Purchase Date. If such Seller cannot deliver, or cause to be delivered, any of the original documents and/or instruments required to be delivered as originals under clauses (b)(i)(C), (D), (E), (G), (H) and (I) of this Section 7, such Seller shall deliver a true and correct photocopy thereof. Such Seller shall use commercially reasonable efforts to obtain and deliver the original document within thirty (30) days (or, if such original document has been submitted for recordation in the appropriate governmental recording office but not yet returned, one hundred eighty (180) days) after the related Purchase Date. After the expiration of the applicable period specified above, Repo Agent may, in its sole and absolute discretion, reduce the Asset Value for such Purchased Loan to $0.00.
(c) From time to time, the applicable Seller shall forward to Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any such other instrumentdocuments, andCustodian shall hold such other documents on behalf of Buyer pursuant to the Custodial Agreement. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to the applicable Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, such Seller shall deliver to Custodian a true, correct and complete copy of the original, which has been transmitted for recordation. The applicable Seller shall deliver such original documents to Custodian promptly when they are received. All Purchased Loan Files shall be deposited directly with Custodian to be held by Custodian on behalf of Xxxxx. The Purchased Loan Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Loan File not delivered to Custodian is and shall be held in trust by the applicable Seller or its designee for the benefit of Buyer as the owner thereof. The applicable Seller or its designee shall maintain a copy of the Purchased Loan File and the originals of the Purchased Loan File not delivered to Custodian. The possession of the Purchased Loan File by the applicable Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Loan, and such retention and possession by the applicable Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of the applicable Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the terms and conditions of this Agreement, of the related Purchased Loan to Buyer. The applicable Seller or its designee (including Custodian) shall release its custody of the Purchased Loan File only in accordance with written instructions from Repo Agent, unless such release is required as incidental to the servicing of the Purchased Loans, is in connection with a Mortgage Loan that was delivered to Custodian by such Seller but was not purchased by Buyer pursuant to this Agreement or is in connection with a repurchase of any Purchased Loan by such Seller or is pursuant to the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Sellers shall have caused Buyer or Repo Agent to have received all of the following items and documents, each of which shall be required to be satisfactory to Repo Agent in form and substance:
Appears in 1 contract
Samples: Master Repurchase Agreement (Angel Oak Mortgage, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Initial Purchase Date for each Transaction, ownership of the related Purchased Loans Mortgage Loan shall be transferred to Buyer or its designee (including the Custodian) against the Buyer’s simultaneous transfer to an account of the applicable SellerInitial Purchase Price to the Funding Account. On each Subsequent Purchase Date, specified as part of the same Transaction that occurred on the Initial Purchase Date, Buyer will purchase the related increase in the Confirmation relating to such Transaction Outstanding Principal Balance of the difference between (i) the Purchase Price related Mortgage Note resulting from Seller’s Subsequent Advance to or for the Purchased Loan(s) minus (ii) any benefit of the related Mortgagor, subject to the terms and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to conditions of Section 27 or Section 30(d) in connection with such Transaction3(j).
(b) On or before such For each Purchased Mortgage Loan, no later than 1:00 p.m. at least one (1) Business Day for any single Purchased Mortgage Loan and two (2) Business Days for more than one (1) but less than twenty (20) Purchased Mortgage Loans, prior to the related Initial Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee (i) , the information contained on Appendix I to the Confirmation, (ii) a Mortgage Loan File Checklist and (iii) a Custodial Delivery in the form attached hereto as Exhibit IV. In connection together with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Mortgage Loan File”) ), each of which shall be an original, fully executed, counterpart (unless otherwise noted below or otherwise acknowledged and accepted by Buyer as a copy), pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed The Mortgage Note together with any applicable ridersbearing all intervening endorsements, endorsed on its face or by allonge attached thereto, “Pay to the order of without recourse” and signed in the name of Seller by an authorized Person, in blank and otherwise showing further reflecting a complete, unbroken chain of assignment or endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit originator to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),Seller;
(Bii) the an original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original with, if applicable, originals or copies of any intervening assignments thereof reflecting a complete, unbroken chain of assignment or endorsement from the originator to Seller, in each case (unless the particular item has been delivered to but not returned from the extent that such original is retained by the relevant public applicable recording office) with evidence of recording thereon;
(iii) the original or a copy of any related Assignment of Leases and Rents (if any such item is a document separate from the Mortgage) and, if applicable, the originals or copies of any intervening assignments of the Mortgage showing thereof reflecting a complete complete, unbroken chain of assignment or endorsement from the originator of such Mortgage Loan to Seller, in each case (unless the particular item has been delivered to but not returned from the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy with evidence of recording thereon;
(iv) an (A) Assignment of Mortgage and (B) assignment of any related Assignment of Leases and Rents (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original ), in each case, executed Omnibus Assignment from the applicable by Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),form;
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording officeA) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(Gfiling thereon) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any prior effective UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee thereof prior to the applicable and including Seller and UCC-3 (B) a UCC financing statement assignment financing statements thereof in favor blank;
(vi) the original or a copy of the applicable policy or certificate of lender’s title insurance issued in connection with such Mortgage Loan (or, if the policy has not yet been issued, an original or copy of a written commitment “marked-up” at the closing of such Mortgage Loan, interim binder or the pro forma title insurance policy, in each case evidencing a binding commitment to issue such policy);
(vii) prints of a current (certified within 60 days of the closing of such Mortgage Loan) Survey;
(viii) an original or a copy of any related security agreement (if such item is a document separate from the Mortgage) an assignment of any related security agreement (if such item is a document separate from the Mortgage and has been recorded) executed by Seller, in blank and, if applicable, in recordable form, which assignment may (in any case) be included as part of the corresponding Assignment of Mortgage referred to in clause (iv) hereof;
(ix) originals or copies of any assumption, modification, written assurance, consolidation, extension and substitution agreements, if any, with, if applicable, evidence of recording thereon, together with any assignments thereof reflecting a complete, unbroken chain of assignment from originator to Seller, in each case (unless the particular item has been delivered to but not been returned from the applicable filing recording office) with evidence of recording thereon, and an assignment thereof executed by Seller in blank and in recordable form;
(x) any documents not otherwise described in the preceding clauses of this definition relating to, evidencing or constituting additional collateral, if any;
(xi) an original or copy of the related guaranty of payment under such Mortgage Loan, if any;
(xii) an original or a copy of each lock box agreement, deposit account control agreement or cash management agreement relating to such Mortgage Loan, if any;
(xiii) an original or a copy of the environmental indemnity from the related Mortgagor or other party, if any;
(xiv) an original or a copy of any intercreditor agreement or similar agreement relating to such Mortgage Loan;
(xv) an original or a copy of any management agreement with respect to the related Mortgaged Property if the manager thereunder is not an Affiliate of the Mortgagor;
(xvi) an original or a copy of any master operating lease with respect to the related Mortgaged Property;
(xvii) if the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) a copy of any franchise, management or similar agreement and (b) a signed copy of any estoppel certificate or comfort letter delivered by the franchisor or similar person for the benefit of the holder of such Mortgage Loan in connection with the origination or acquisition of such Mortgage Loan, together with such instrument(s) of notice or transfer (if any) as are necessary to transfer or assign to Buyer the benefits of such estoppel certificate or comfort letter;
(xviii) an original or copy of the Mortgage Loan Agreement;
(xix) General Assignment of such Purchased Mortgage Loan from originator, reflecting a complete, unbroken chain of assignment from originator to Seller, and a General Assignment of such Purchased Mortgage Loan executed by Seller in blank;
(xx) an original or copy of the disbursement letter from the Mortgagor to the originator (if any);
(xxi) an original or copy of the Mortgagor’s opinion of counsel (if any);
(xxii) assignments of permits, contracts and agreements (if any);
(xxiii) assignments of any interest rate cap agreement or other interest rate protection agreement entered into by the Mortgagor or its affiliates, with the counterparty’s written consent to such assignment (and further assignment to originator’s assignees) and agreement to make all payments thereunder to the originator and its assignees;
(xxiv) the original or copy of any participation agreement and/or servicing agreement executed in connection with such Mortgage Loan;
(xxv) an original or copy of any Insurance Policy or certificates;
(xxvi) an original or copy of an assignment of permits, contracts and agreements (if any);
(xxvii) an original or copy of any environmental site assessment, appraisal and property condition report;
(xxviii) if the related Mortgagor’s interest in the Mortgaged Property is a leasehold estate, the originals of ground lease estoppel(s) (and similar agreements), with true and correct copies of the ground lease, together with all amendments and modifications thereof and other agreements between ground lessor and lessee, attached thereto (and, if recorded, with evidence of filing indicated thereon or certified recording thereon, unless the original document has been sent for recording but has not been returned by the applicable filing recording office,), any memorandum of ground lease, all amendments and modifications thereof (and, if recorded, with evidence of recording thereon, unless the original document has been sent for recording but has not been returned by the applicable recording office) and all other agreements with the ground lessor and any lender to the ground lessor;
(Oxxix) UCC-3 assignment financing statements if any of the related Mortgaged Properties are a condominium:
(A) a copy of the declaration of condominium;
(B) copies of the governing documents of the condominium association;
(C) a copy of the plat or map establishing or depicting the condominium;
(D) a copy of the condominium endorsement to the title policy; and
(E) such other documents, instruments and agreements as Buyer may require in its discretion.
(xxx) If applicable, the originals or copies of any other agreements, documents and/or certificates executed in connection with the Purchased Mortgage Loan or identified on any closing checklist, closing index or the Mortgage Loan File Checklist.
(xxxi) the originals or copies of any additional documents and agreements required to be added to the Mortgage Loan File by Buyer or pursuant to this Agreement and the Transaction Documents. From time to time, but in no event later than three (3) Business Days following execution and receipt of fully executed documents, Seller shall forward to the Custodian additional original documents or additional documents evidencing any assumption, modification, amendment, consolidation, extension substitution or restatement of or waiver or consent with respect to a Purchased Mortgage Loan approved in accordance with the terms of this Agreement, and upon receipt of any such documents and such other documents, the Custodian shall hold such documents and such other documents as Buyer shall request from time to time as part of the related Mortgage Loan File. With respect to any Mortgage Loan Document that has been delivered or is being delivered to recording offices for recording or filing and has not been returned to Seller in time to permit delivery hereunder at the time and in the form required, in lieu of delivering such Mortgage Loan Document, Seller shall deliver to Custodian a true duplicate original thereof certified by Seller to be a true and correct copy of the original delivered to the appropriate recording office, and Seller shall deliver to Custodian such Mortgage Loan Document in the form required hereunder, together with any related policy of title insurance not previously delivered to Custodian (with evidence of recording or filing, as applicable, thereon or therein, as applicable), promptly after its receipt for inclusion in the Mortgage Loan File, and the delivery requirements of this Section 7(c) shall be deemed provisionally satisfied with respect to such Mortgage Loan Document. If the original or a copy of any such Mortgage Loan Document that is required to bear evidence of recording or filing cannot be delivered with evidence of recording or filing thereon on or prior to the 90th day following the related Purchase Date (or such later date as may be agreed upon between Buyer and Seller) because of a delay caused by the public recording office where such original Mortgage Loan Document has been delivered for recordation or filing, then the delivery requirements of this Section 7(c) shall be deemed provisionally satisfied if, a certificate of an authorized officer of Seller or a statement from the applicable title agent delivered to Buyer and Custodian to the effect that such original Mortgage Loan Document has been sent to the appropriate public recording official for recordation or filing and detailing any communications with the recording office or actions taken by Seller (or by others on its behalf) to consummate such recordation or filing. Seller shall, until the recorded or filed Mortgage Loan Document in the form required hereunder has been received by the Custodian, deliver an officer’s certificate as described above on the 90th day following the related Purchase Date and every 90th day thereafter (or on the next succeeding Business Day if any such 90th day is not a Business Day). No Default or Event of Default shall occur as a result of the Seller’s failure to provide any such officer’s certificate unless Seller, after the earlier of actual knowledge by Seller or notice by Buyer that the provision of such officer’s certificate is past due, fails to deliver such officer’s certificate as provided herein within five (5) Business Days of such knowledge or notice. With respect to all of the Purchased Mortgage Loans delivered by Seller to Buyer or its designee (including the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit V attached hereto irrevocably appointing Buyer its attorney-in-fact, which appointment is irrevocable and coupled with an interest, with full power, if an Event of Default has occurred and is continuing, to (i) complete and record Assignments of Mortgage and other recordable Mortgage Loan Documents delivered “in blank,
”, (Pii) an original complete endorsement of Mortgage Note delivered “in blank”, (iii) modify any subordination agreement other documents described in this Section 7(c) to the extent necessary to make them acceptable for recording or intercreditor agreement,
filing in the appropriate governmental recording office and (Qiv) if take such other steps as may be necessary or desirable to enforce Buyer’s rights against such Purchased Mortgage Loans and the related Mortgage Loan Files and the Servicing Records and to create a first priority perfected security interest in favor of Buyer, as secured party, therein. Buyer shall deposit the Mortgage Note Loan Files representing the Purchased Mortgage Loans, or direct that the Mortgage was executed Loan Files be deposited directly, with the Custodian. The Mortgage Loan Files shall be maintained in accordance with the Custodial Agreement. Any Mortgage Loan Document constituting part of the Mortgage Loan File not delivered to Buyer or its designee (including the Custodian) is and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage Loan File. Any originals of the Mortgage Loan Documents that come into the possession of Seller or any Affiliate shall be forwarded by or at the direction of Buyer as promptly as possible to Custodian pursuant to a power Custodial Delivery. The possession of attorney a Mortgage Loan File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Mortgage Loan to Buyer. Seller or its designee (including the Custodian) shall release its custody of the Mortgage Loan File only in accordance with written instructions from Buyer. Unless an Event of Default shall have occurred and be continuing, subject to Article 24, Buyer shall exercise all voting and corporate rights with respect to the Purchased Mortgage Loans in accordance with Seller’s written instructions; provided, however, that Buyer shall not be required to follow Seller’s instructions concerning any vote or corporate right if doing so would, in Buyer’s good faith business judgment, impair the Purchased Mortgage Loans or be inconsistent with or result in any violation of any provision of the Transaction Documents. Upon the occurrence and during the continuation of an Event of Default (other instrument that authorized or empowered such person than with respect to signBuyer), an original of such power of attorney or other instrument, andBuyer shall be entitled to exercise all voting and corporate rights with respect to the Purchased Mortgage Loans without regard to Seller’s instructions.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract (TPG RE Finance Trust, Inc.)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer: JPMorgan Chase Bank, Account Number 00000000, for the credit account: JPMorgan Chase Bank NY; ref: PennyMac, ABA# 000-000-000 Attn: Mortgage Finance, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price to the following account of Sellers: Account No. 1257205359, for the Purchased Loan(s) minus (ii) any and all feesaccount of PennyMac Operating Partnership, costs and expenses includingL.P. Operating Account, without limitationBank of America, reasonable attorneys’ fees and disbursements payable N.A., ABA No. 026 009 593, Attn: Treasury, or Account No. 1257409535, for the account of PennyMac Holdings, LLC Operating Account, Bank of America, N.A., ABA No. 026 009 593, Attn: Treasury, as applicable, simultaneously with the delivery to Buyer pursuant of the Purchased Mortgage Loans relating to Section 27 or Section 30(d) in connection with such each Transaction.
(b) On or before such . With respect to the Purchased Mortgage Loans being sold by any Seller on a Purchase Date, the applicable such Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer Asset File for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andAsset.
Appears in 1 contract
Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer: JPMorgan Chase Bank, Account Number ********, for the credit account: JPMorgan Chase Bank NY; ref: PennyMac, ABA# ***-***-*** Attn: Mortgage Finance, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price to the following account of Sellers: Account No. **********, for the Purchased Loan(s) minus (ii) any and all feesaccount of PennyMac Operating Partnership, costs and expenses includingL.P. Operating Account, without limitationBank of America, reasonable attorneys’ fees and disbursements payable N.A., ABA No. *** *** ***, Attn: Treasury, or Account No. **********, for the account of PennyMac Holdings, LLC Operating Account, Bank of America, N.A., ABA No. *** *** ***, Attn: Treasury, as applicable, simultaneously with the delivery to Buyer pursuant of the Purchased Mortgage Loans relating to Section 27 or Section 30(d) in connection with such each Transaction.
(b) On or before such . With respect to the Purchased Mortgage Loans being sold by any Seller on a Purchase Date, the applicable such Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer Asset File for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andAsset.
Appears in 1 contract
Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
PAYMENT, TRANSFER AND CUSTODY. (a) On the Purchase Date for each TransactionUnless otherwise mutually agreed in writing, ownership all transfers of the Purchased Loans funds hereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionimmediately available funds.
(b) On or before such each Purchase Date, the applicable Seller shall deliver or cause to be delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IVII.
(c) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including the Custodian) of the Purchased Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and assigns to Buyer or its designee (including the Custodian) without recourse, but subject to the terms of this Agreement, all the right, title and interest of Seller in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased Loaneach Mortgage Loan which is not a Wet Ink Mortgage Loan (or with respect to item (vii) below within seven Business Days after the Purchase Date), the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following original documents (collectively, collectively the “Loan Mortgage File”) ), pertaining to each of the Purchased Mortgage Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(Ai) the original executed Mortgage Note together with any applicable ridersbearing all intervening endorsements (or allonges), endorsed on its face or by allonge attached thereto“Pay to the order of ________, without recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an authorized officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in blank and otherwise showing a completethe following form:“[the Last Endorsee], unbroken chain successor by merger to [name of endorsement from predecessor]”; in the initial lender event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: “[the Last Endorsee], formerly known as [previous name]”);
(or, if such ii) the original of any guarantee executed in connection with the Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver (if any);
(iii) the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is or a recordable document,copy certified by Seller to have been sent for recording;
(Giv) the originals of all modification agreements assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in those instances blank for each Mortgage Loan, in which form and substance acceptable for recording and signed in the terms or provisions name of the Last Endorsee (in the event that the Mortgage Note Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been modified,sent for recording;
(Hvii) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or a true copy thereof or, if such policy has not yet been issueddelivered by the insurer, the commitment or binder to issue the same; and
(viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any).
(e) In connection with each sale, transfer, conveyance and assignment, on or prior to the seventh Business Day following each Purchase Date with respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, Seller shall deliver or cause to be delivered to the Custodian a complete Mortgage File. On the date on which the Buyer receives a Trust Receipt from the Custodian certifying that a complete Mortgage File with respect to a Wet Ink Mortgage Loan is in the possession of the Custodian, such Wet Ink Mortgage Loan be deemed a standard Mortgage Loan (and no longer a Wet Ink Mortgage Loan) for all purposes hereunder, including, without limitation, determination of the Pricing Spread and compliance with subsection (zz) of Exhibit V.
(f) With respect to each Mortgage Loan delivered by Seller to Buyer or its designee (including the Custodian), Seller shall have executed an irrevocableomnibus power of attorney substantially in the form of Exhibit III attached hereto irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, binding commitment (which complete the endorsement of the Mortgage Note and take such other steps as may be an agreement necessary or desirable to provide enforce Buyer's rights against such Mortgage Loans, the same pursuant to binding escrow instructions executed by an authorized representative of related Mortgage Files and the title company) to issue such title insurance policy,Servicing Records.
(Ig) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage Loans, or direct that the Mortgage Files be deposited directly, with the Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of the Buyer for the sole purpose of servicing the related Purchased Mortgage Loan, and such retention and possession by the Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any ground lease and any ground lessor estoppels,
(Jcomputer records or tapes) if such Mortgage Loan contains a Future Advance Obligation, an original of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related loan agreement,
Purchased Mortgage Loan to Buyer. Seller or its designee (Kincluding the Custodian) an original shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Mortgage Loans or is in connection with a repurchase of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Purchased Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (Aames Financial Corp/De)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: MLMCI, Account No. 00000000, for the account of MLMCI Matchbook, Bankers Trust, N.Y., ABA# 021 001 033, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased MH Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price pursuant to an the Disbursement Agreement or to the following account of the applicable Seller (or as otherwise directed by the Seller): Account No. 193343777, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the account of Bank One, NA, ABA No. 000000000, Attn: Xxxxxx Xxxxxxxxx. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such MH Loans being sold by a Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Seller in and to the form attached hereto as Exhibit IV. Purchased MH Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer File for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andPurchased MH Loans.
Appears in 1 contract
Samples: Master Repurchase Agreement (Affordable Residential Communities Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at the following account maintained by Buyer; Account No. GLA 111569, account name SER, Bank of New York, ABA No. 021000018, Attn: Eric Seyffer, not later than 3 p.m., New York Cxxx xxxx, on the xxxx xx xxxxh such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Loans Assets shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer to an account of the applicable Seller, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for as set forth in Section 11 of the Custodial and Disbursement Agreement not later than 6 p.m., New York City time, simultaneously with the delivery to Custodian of the Purchased Loan(s) minus (ii) any Assets relating to each Transaction. Seller hereby sells, transfers, conveys and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Purchase Date, the applicable Seller shall deliver or cause to be delivered assigns to Buyer or its designee (including Custodian) without recourse, but subject to the Custodial Delivery terms of this Agreement, all the right, title and interest of Seller in and to the form attached hereto as Exhibit IV. Purchased Assets together with all right, title and interest in and to the proceeds of any related Purchased Items.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to Buyer or its designee (including Custodian) (i) the Custodian, Custodial Identification Certificate and shall cause (ii) the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:Disbursement Agreement.
(Ad) the original executed Any Mortgage Note together with any applicable riders, endorsed on Files not delivered to Buyer or its face or designee (including Custodian) are and shall be held in trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the Mortgage, together with an original or (to Mortgage File and the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments originals of the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan File not delivered to the applicable Seller,
Buyer or its designee (C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording officeincluding Custodian),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions . The possession of the Mortgage have been modifiedFile by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and possession by Seller or its designee is in each case (unless the particular item has not been returned a custodial capacity only. Each Mortgage File retained or held by Seller or its designee shall be segregated on Seller's books and records from the applicable recording office) with evidence other assets of recording indicated thereon if Seller or its designee and the instrument being modified is a recordable document,
(G) originals books and records of all modification agreements in those instances in which Seller or its designee shall be marked appropriately to reflect clearly the terms sale of the related Purchased Asset to Buyer. Seller or provisions its designee shall release its custody of the Mortgage Note have been modified,
(H) File only in accordance with written instructions from Buyer, unless such release is required as incidental to the original policy servicing of the Purchased Assets or certificate of lender’s title insurance issued is in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy repurchase of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Purchased Asset by Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, and.
Appears in 1 contract
Samples: Master Repurchase Agreement (American Home Mortgage Holdings Inc)
PAYMENT, TRANSFER AND CUSTODY. (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by the Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 00000000, for the account of Xxxxxxx Xxxxx Mortgage Company; Citibank, N.A., New York, ABA No. 02100089, Attn: Xxxx Xxxxxxxx and Xxxx Xxxxxx, not later than 3:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Each Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price (i) to an the following account of the applicable SellerSellers (or as otherwise directed by the Sellers) with respect to Mortgage Loans other than TPO Mortgage Loans, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price Account No. [Music Xxxxxxx] 00000000, for the Purchased Loan(s) minus account of [Music Xxxxxxx] New Century Operating Account Deutsche Bank National Trust Company, ABA No. [Music Xxxxxxx] 000000000, Attn: [Music Xxxxxxx] Xxxx Xxxx, not later than [Music Xxxxxxx] 4:30 p.m. New York City time, and (ii) any and all feeswith respect to TPO Mortgage Loans, costs and expenses includingas set forth in the TPO Account Control Agreement, without limitationin each case, reasonable attorneys’ fees and disbursements payable simultaneously with the delivery to the Buyer pursuant of the Purchased Mortgage Loans relating to Section 27 or Section 30(d) in connection with such each Transaction.
(b) On or before such .. With respect to the Purchased Mortgage Loans being sold by a Seller on a Purchase Date, the applicable such Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of such Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller Sellers shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
PAYMENT, TRANSFER AND CUSTODY. (a) Except with respect to transfers of funds related to Mortgage Loans subject to a Takeout Commitment, or unless otherwise mutually agreed in writing, all transfers of funds to be made by the Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Buyer at the following account maintained by the Buyer: Account No. 00000000, for the account of MLCMI Matchbook, Bankers Trust, N.Y. ABA No. 000-000-000, not later than 5:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). The Seller acknowledges that it has no rights of withdrawal from the foregoing account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to the Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an the following account of the applicable SellerSeller (or as otherwise directed by the Seller pursuant to the Disbursement Agreement or otherwise): Account No. 38462, specified in the Confirmation relating to such Transaction of the difference between (i) the Purchase Price for the account of Deutsche Bank, ABA No. 000000000, Attn: Xxxxx Xxxxxxxx. With respect to the Purchased Loan(s) minus (ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transaction.
(b) On or before such Mortgage Loans being sold by a Seller on a Purchase Date, the applicable Seller shall deliver or cause to be delivered hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the Custodial Delivery terms of this Repurchase Agreement, all the right, title and interest of the Seller in and to the form attached hereto as Exhibit IV. Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets.
(c) In connection with each such sale, transfer, conveyance and assignment of a Purchased Loanassignment, on or prior to each Purchase Date with respect to such Purchased LoanDate, the applicable Seller shall deliver or cause to be delivered and released to the Custodian, and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on Buyer or its face or by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from the applicable Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) a copy of the Mortgage, together with an original or (to the extent that such original is retained by the relevant public recording office) a copy of any intervening assignments of designee the Mortgage showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except File for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy,
(I) a copy of any ground lease and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Purchased Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andLoans.
Appears in 1 contract
PAYMENT, TRANSFER AND CUSTODY. (a) On Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Loans Assets and all rights thereunder shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of the applicable Seller, Seller specified in the Confirmation relating to such Transaction Transaction. Buyer will provide Seller with a Power of the difference between (i) the Purchase Price for the Attorney to Seller, allowing Seller to administer, operate and service such Purchased Loan(s) minus (ii) any Assets. Provided that no Event of Default shall have occurred and all feesbe continuing, costs such Power of Attorney to Seller shall be binding upon Buyer and expenses including, without limitation, reasonable attorneys’ fees Buyer’s successors and disbursements payable to Buyer pursuant to Section 27 or Section 30(d) in connection with such Transactionassigns.
(b) On or before such Seller shall:
(i) with respect to each Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) on the Purchase Date, deliver or cause Bailee to deliver to Buyer, by electronic transmission, a true and complete copy of the applicable related Mortgage Note or Participation Certificate with assignment in blank (as applicable), loan agreement, Mortgage, Title Policy, Insured Closing Letter and Escrow Instructions, if any, and the executed Bailee Agreement; (B) not later than 1:00 p.m. (New York time) on the third (3rd) Business Day following the Purchase Date, deliver or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with a Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and (C) not later than two (2) Business Days following receipt of such Purchased Asset Documents by Custodian, cause Custodian to deliver a Trust Receipt confirming such receipt; and
(ii) with respect to each Purchased Asset that is not a Table Funded Purchased Asset, (A) not later than 1:00 p.m. (New York time) two (2) Business Days prior to the related Purchase Date, deliver and release or cause Bailee to deliver and release to Custodian (with a copy to Buyer), together with the Purchased Asset File Checklist, the Purchased Asset Documents with respect to each Table Funded Purchased Asset identified in the Purchased Asset File Checklist delivered therewith, and the executed Bailee Agreement, as applicable, and (B) on the Purchase Date, cause Custodian to deliver a Trust Receipt confirming receipt of such Purchased Asset Documents; provided that if Seller shall deliver cannot deliver, or cause to be delivered, any of the original Purchased Asset Documents required to be delivered as originals (excluding the Mortgage Note, the Assignment of Mortgage and, if applicable, the Participation Certificate, originals of which must be delivered at the time required under the provisions above), Seller shall deliver a photocopy thereof and an Officer’s Certificate of Seller certifying that such copy represents a true and correct copy of the original and shall use its best efforts to obtain and deliver such original document within one hundred eighty (180) days after the related Purchase Date (or such longer period after the related Purchase Date to which Buyer may consent in its sole discretion, so long as Seller is, as certified in writing to Buyer not less frequently than monthly, using its best efforts to obtain the original). After the expiration of such best efforts period, Seller shall deliver to Buyer a certification that states, despite Seller’s best efforts, Seller was unable to obtain such original document, and thereafter Seller shall have no further obligation to deliver the related original document. Notwithstanding the foregoing, Buyer shall, at its option, have the right to cancel the purchase of an Eligible Asset if all required originals have not been delivered as required in this Agreement.
(c) From time to time, Seller shall forward to Custodian additional original documents (or additional documents reasonably requested by Buyer and can be provided by Seller without undue burden) evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, Custodian shall hold such other documents on behalf of Buyer and as Buyer shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyer a true copy thereof with an Officer’s Certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to Custodian promptly when they are received. With respect to all of the Purchased Assets delivered by Seller to Buyer or its designee (including Custodian), Seller shall execute an omnibus Power of Attorney to Buyer irrevocably appointing Buyer its attorney-in-fact with full power to (i) complete and record any Assignment of Mortgage, (ii) complete the endorsement of any Mortgage Note or Participation Certificate (as applicable) and (iii) take such other steps as may be necessary or desirable to enforce Buyer’s rights against any Purchased Assets and the related Purchased Asset Files and the Servicing Records. Buyer shall deposit the Purchased Asset Files representing the Purchased Assets, or cause the Purchased Asset Files to be deposited directly, with Custodian to be held by Custodian on behalf of Buyer. The Purchased Asset Files shall be maintained in accordance with Custodial Agreement. Any Purchased Asset File not delivered to Buyer or its designee the Custodial Delivery in the form attached hereto as Exhibit IV. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan, the applicable Seller shall deliver or cause to be delivered and released to the (including Custodian, ) is and shall cause the Custodian to deliver a Trust Receipt on the Purchase Date concerning the receipt of, the following documents (collectively, the “Loan File”) pertaining to each of the Purchased Loans identified be held in the Custodial Delivery delivered therewith; provided, that the applicable Seller shall deliver a certificate of an Authorized Representative of such Seller certifying that any copies of documents delivered represent true and correct copies of the originals of such documents:
(A) the original executed Mortgage Note together with any applicable riders, endorsed on its face or trust by allonge attached thereto, without recourse, in blank and otherwise showing a complete, unbroken chain of endorsement from the initial lender (or, if such original Mortgage Note has been lost, an affidavit to such effect from the applicable Seller or another prior holder and a customary indemnity from its designee for the applicable benefit of Buyer as the owner thereof. Seller in favor of the Buyer for any costs, losses or damages arising from the failure to deliver the original Mortgage Note, together with a copy of such Mortgage Note),
(B) the original or (to the extent that such original is retained by the relevant public recording office) its designee shall maintain a copy of the MortgagePurchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee. The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Purchased Asset, together with an original and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the transfer, subject to the extent that such original is retained by the relevant public recording office) a copy terms and conditions of any intervening assignments this Agreement, of the Mortgage showing a complete chain related Purchased Asset to Buyer. Seller or its designee (including Custodian) shall release its custody of assignment the Purchased Asset File only in accordance with written instructions from the originator of Buyer, unless such Mortgage Loan release is required as incidental to the applicable Seller,
(C) the original or (to the extent that such original is retained by the relevant public recording office) a copy of any Assignment of Leases (if such item is a document separate from the Mortgage) and of any intervening assignments of such Assignment of Leases showing a complete chain of assignment from the originator of such Mortgage Loan to the applicable Seller,
(D) an original executed Omnibus Assignment from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(E) an original executed assignment of any Assignment of Leases (if such item is a document separate from the Mortgage) from the applicable Seller in blank and in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office),
(F) originals or (to the extent that such originals are retained by the relevant public recording office) copies of all modification agreements in those instances in which the terms or provisions servicing of the Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified Purchased Assets or is a recordable document,
(G) originals of all modification agreements in those instances in which the terms or provisions of the Mortgage Note have been modified,
(H) the original policy or certificate of lender’s title insurance issued in connection with the origination a repurchase of such Mortgage Loan, together with its endorsements or, if such policy has not been issued, an irrevocable, binding commitment (which may be an agreement to provide the same any Purchased Asset by Seller or is pursuant to binding escrow instructions executed by an authorized representative the order of a court of competent jurisdiction.
(d) On the date of this Agreement, Buyer shall have received all of the title company) following items and documents, each of which shall be satisfactory to issue such title insurance policy,
(I) a copy of any ground lease Buyer in form and any ground lessor estoppels,
(J) if such Mortgage Loan contains a Future Advance Obligation, an original of the related loan agreement,
(K) an original of any guaranty of payment under such Mortgage Loan,
(L) an original of any environmental indemnity,
(M) an original copy of any escrow agreements,
(N) copies of any UCC financing statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the applicable Seller and UCC-3 assignment financing statements in favor of the applicable Seller, in each case (unless the particular item has not been returned from the applicable filing office), with evidence of filing indicated thereon or certified by the applicable filing office,
(O) UCC-3 assignment financing statements from the applicable Seller in blank,
(P) an original of any subordination agreement or intercreditor agreement,
(Q) if the Mortgage Note or Mortgage was executed pursuant to a power of attorney or other instrument that authorized or empowered such person to sign, an original of such power of attorney or other instrument, andsubstance:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Ares Commercial Real Estate Corp)
