We use cookies on our site to analyze traffic, enhance your experience, and provide you with tailored content.

For more information visit our privacy policy.

Common use of Sale of Mortgage Loans Clause in Contracts

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, (ii) the Seller's interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with such conveyances by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed without recourse to the order of the Indenture Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Indenture Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage Note; (ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals of such documents to the Indenture Trustee, promptly upon receipt thereof. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1. (c) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indenture.

Appears in 6 contracts

Samples: Sale and Servicing Agreement (MortgageIT Trust 2005-5, Mortgage-Backed Notes, Series 2005-5), Sale and Servicing Agreement (MORTGAGEIT TRUST 2005-4, Mortgage-Backed Notes, Series 2005-4), Mortgage Loan Purchase Agreement (MORTGAGEIT TRUST 2005-4, Mortgage-Backed Notes, Series 2005-4)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of the Seller's right, title and interest in, to and under the Mortgage Loans, after giving effect to all payments due on the Mortgage Loans on or before the Cut-off Date, whether or not received including the right to any Prepayment Charges payable by the related Mortgagors in connection with any Principal Prepayments on the Mortgage Loans, whether now existing or hereafter acquired and wherever located, on the Closing Date and as of the Cut-off Date, as well as all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as each of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, (ii) the Seller's interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoingCap Contracts. (b) In connection with such conveyances by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for to the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note Note, endorsed without recourse in blank or in the following form "Pay to the order of the Deutsche Bank National Trust Company, as Indenture Trustee or in blankunder the applicable agreement, without recourse," with all prior and intervening endorsements showing an unbroken a complete chain of endorsements endorsement from the original payee thereof originator to the Person so endorsing it to the Indenture Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage NoteTrustee; (ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, orand the original recorded power of attorney, if the original Mortgage has not yet been returned from the public recording officewas executed pursuant to a power of attorney, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (iii) an original Assignment in blank; (iv) the original recorded Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Indenture Trustee as contemplated by the immediately preceding clause (iii); (v) the original or a copy copies of the policy each assumption, modification, written assurance or certificate of primary mortgage guaranty insurance, to the extent availablesubstitution agreement, if any;; and (vi) the original or a copy of the policy of lender's title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreementspolicy or, if applicable and availablethe original title policy has not been issued, the irrevocable commitment to issue the same. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, Loan including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller Responsible Party shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Purchase Price or substitute a Qualified Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with With respect to a maximum of approximately 2.0% of the assignment Mortgage Loans, by outstanding Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, if any original Mortgage Loan registered on the MERS® SystemNote referred to in Section 2.1(b)(i) above cannot be located, the obligations of the Seller further agrees that it will causeto deliver such documents shall be deemed to be satisfied upon delivery to the Purchaser of a photocopy of such Mortgage Note, at if available, with a lost note affidavit substantially in the Seller's own expenseform of Exhibit B hereto. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Purchaser is subsequently located, such original Mortgage Note shall be delivered to the Purchaser within 30 three Business Days. The Seller promptly shall (within sixty Business Days following the later of the Closing Date and the date of the receipt by the Seller of the recording information for a Mortgage but in no event later than ninety days after following the Closing Date) submit or cause to be submitted for recording, at no expense to the MERS® System to indicate that such Mortgage Loans have been assigned by Purchaser (or the Seller to Trust Estate or the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of under the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records records, each of the assignments Assignment referred to in clause clauses (iiib)(iii) aboveand (b)(iv) of this Section 2.1 and shall execute each original Assignment in the following form: "Deutsche Bank National Trust Company, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the as Indenture Trustee shall retain a photocopy of under the applicable agreement." In the event that any such assignment. If any assignment Assignment is lost or returned unrecorded to the Indenture Trustee because of any a defect therein, the Seller is required to promptly shall prepare a substitute assignment Assignment or cure such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Notes; provided, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Purchaser, upon the earliest to occur of: (i) reasonable direction by Holders of Notes entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master Servicer Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Master Servicer, (iv) the occurrence of a servicing transfer as described in Section 6.02 of the Servicing Agreement, (v) with respect to any one Assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage and (vi) any Mortgage Loan that is 90 days or more delinquent. Upon (a) receipt of written notice that recording of the Assignments is required pursuant to one or more of the conditions (excluding condition (vi) above) set forth in the preceding sentence or (b) upon the occurrence of condition (vi) in the preceding sentence, the Seller shall cause be required to deliver such substitute assignment Assignments within 30 days following receipt of such notice. If any of the documents referred to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was notSections 2.1(b)(ii), in accordance with clause (iiiii) or (iv) aboveabove has, delivered as of the Closing Date, been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Purchaser or its assignee, transferee or designee of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Purchaser or its assignee, transferee or designee promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. Notice shall be provided to the Indenture Trustee and the Rating Agencies by the Seller if delivery pursuant to clause (2) above will be made more than 180 days after the Indenture Trustee, prior Closing Date. If the original lender's title insurance policy was not delivered pursuant to or concurrently with the execution and delivery of this AgreementSection 2.1(b)(vi) above, the Seller will shall deliver or cause to be delivered the originals of such documents to the Indenture TrusteePurchaser or its assignee, transferee or designee promptly after receipt thereof, the original lender's title insurance policy. The Seller shall deliver or cause to be delivered to the Purchaser or its assignee, transferee or designee promptly upon receipt thereofthereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Purchaser hereby acknowledges its acceptance of all right, title and interest Each original document relating to a Mortgage Loan which is not delivered to the Mortgage Loans and other propertyPurchaser or its assignee, now existing and hereafter createdtransferee or designee, conveyed to it pursuant to this Section 2.1if held by the Seller, shall be so held for the benefit of the Purchaser, its assignee, transferee or designee. (c) The parties hereto intend (other than for federal, state and local tax purposes) that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware California (which shall have been submitted for filing as of the Closing Date with respect to the Stated Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest perfect and protect the Purchaser's interests in each Mortgage Loan and the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indentureproceeds thereof.

Appears in 2 contracts

Samples: Mortgage Loan Sale and Contribution Agreement (New Century Home Equity Loan Trust, Series 2004-3), Mortgage Loan Sale and Contribution Agreement (New Century Home Equity Loan Trust 2004-1)

Sale of Mortgage Loans. (a) The Seller, by concurrently with the execution and delivery of this Agreement, does hereby sell, transfer, assign, set over, over and otherwise convey convey, to the Purchaser, without recourse but recourse, (subject to the terms of this Agreement, all of its right, title Sections 2.2 and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, 3.1) (i) all of its right, title and interest in the and to each Mortgage Loans identified on Exhibit 1 as of the Closing DateLoan, including the related Cut-off Off Date Principal Balance, Balance and all collections in respect of interest accruing thereon on and principal received after the Cut-off Date, and all collections Off Date (other than payments in respect of accrued interest and principal due after the Cut-off Dateon or before March 1, 2005); (ii) the Seller's property which secured such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies related to in respect of the Mortgage Loans and (iiiv) all proceeds of any of the foregoing. (b) In connection with such conveyances by the Sellertransfer, assignment and conveyance the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Companywith, as custodian for the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage LoanLoan (the "Related Documents") and the related Mortgage Loan Schedule in computer readable format: (i) the The original Mortgage Note endorsed without recourse to the order of the Indenture Trustee or in blankNote, with all prior and intervening endorsements showing an unbroken a complete chain of endorsements from the original payee thereof originator of the Mortgage Loan to the Person so endorsing it the Mortgage Loan to the Indenture Trustee, endorsed by such Person "Pay to the order of HSBC Bank USA, National Association, as Indenture Trustee under the applicable agreement, without recourse" and signed, by facsimile or manual signature, in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replaced, a lost note affidavit together with a copy name of the related Mortgage NoteSeller by a Responsible Officer; (ii) For each Mortgage Loan that is not a MERS Mortgage Loan, any of: (1) the original Mortgage andand related power of attorney, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loanany, with evidence of recording thereon, or(2) (A) a copy of the Mortgage, if the original Mortgage has not yet been returned from the public recording officeany, certified as a true copy of the original Mortgage certified by a Responsible Officer of the Seller by facsimile or manual signature or by the Seller closing attorney or by an officer of the title insurer or agent of the title insurer that issued the related title insurance policy, in such case, if the original has been transmitted for recording until such time as the original is returned by the public recording office in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals of such documents to the Indenture Trustee, promptly upon receipt thereof. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1. (c) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indenture.

Appears in 2 contracts

Samples: Servicing Agreement (Renaissance Home Equity Loan Trust 2005-1), Mortgage Loan Sale and Contribution Agreement (Renaissance Home Equity Loan Trust 2005-1)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreementrecourse, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, : (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as (including the Cut-Off Date Principal Balances of the Closing Date, including the related Cut-off Date Principal BalanceMortgage Loans), all interest accruing thereon thereon, all monies due or to become due thereon, and all collections in respect thereof received on and or after the Cut-off Date, Off Date (other than principal and all collections of interest and principal due after thereon on or prior to the Cut-off Off Date, ); (ii) the Seller's interest of the Seller in any insurance policies related to in respect of the Mortgage Loans Loans; and (iii) all proceeds of the foregoing. Such conveyance shall be deemed to be made: with respect to the Cut-Off Date Principal Balances, as of the Closing Date, subject to the receipt by the Seller of consideration therefor as provided herein under clause (a) of Section 2.3. (b) In connection with such conveyances the conveyance by the SellerSeller of the Mortgage Loans, the Seller further agrees, at its own expense, on or prior to the Closing Date with respect to the Stated Principal Balances of the Mortgage Loans, to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement, and to deliver to the Purchaser true and complete lists of all of the Mortgage Loans specifying for each Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal Balance. Such lists, which form the Mortgage Loan Schedule, shall be marked as Exhibit 1 to this Agreement and are hereby incorporated into and made a part of this Agreement. (c) Except for Missing Documents identified in Exhibit 2 hereto, in connection with the conveyance by the Seller of the Mortgage Loans sold by it, the Seller shall, (A) with respect to each related Mortgage Loan, on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Companythe Custodian, as custodian for the Indenture Trustee, on or at least five (5) Business Days before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed or assigned without recourse to the order in blank (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of the Indenture Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Indenture Trustee or in blank Seller ) or, with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage Note; Lost Note Affidavit and (iiB) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office except as provided in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(bclause (A) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to the Mortgage Notes and except for Missing Documents identified in Exhibit 2 hereto, deliver the Mortgage Files to the Servicer. Within the time period for the review of each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as Note set forth in Section 2.01(b) 2.2 of the Sale and Servicing Custodial Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File Note is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if the Seller's failure to deliver any document required to be delivered to the Custodian on behalf of the Indenture Trustee has not been delivered (provided provided, that a Mortgage File Note will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if it is listed on Exhibit 2 hereto and the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraphdefect related thereto is a Missing Document), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a an Eligible Substitute Mortgage Loan for the related Mortgage Loan therefor upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans, provided that the Seller shall have the option to substitute an Eligible Substitute Mortgage Loan or Loans for such Mortgage Loan only if such substitution occurs within two years following the Closing Date. In connection with Notwithstanding anything contained herein, the assignment of Seller or Servicer shall not be required to repurchase any Mortgage Loan registered on due to the MERS® Systemfailure to deliver to the Custodian any Missing Documents. However, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System be required to indicate that repurchase any such Mortgage Loans Loan if: (i) foreclosure proceedings have been assigned commenced with respect to such Mortgage Loan and (ii) the failure to possess a Missing Document described under the definition of Mortgage File (I)(i), (ii), (iii), (iv), (vi) or (II) materially and adversely affects the Servicer's ability to foreclose on the related Mortgage Loan or to establish the full amount of principal and interest owing on the related Mortgage Note. Exhibit 2 hereto shall be delivered by the Seller to the Indenture Trustee in accordance with this Agreement for not later than 30 days from the benefit Closing Date. Upon sale of the Noteholders by including (or deletingMortgage Loans, the ownership of each Mortgage Note, each related Mortgage and the contents of the related Mortgage File shall be vested in the case Purchaser and the ownership of Mortgage Loans which are repurchased in accordance with the Sale all records and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph documents with respect to any the Mortgage Loans that are prepared by or that come into the possession of the Seller in its capacity as seller of the Mortgage Loans hereunder or by the Servicer in its capacity as servicer under the Servicing Agreement shall immediately vest in the Purchaser and shall be retained and maintained in trust by GMACM as the Servicer (except for the Mortgage Notes, which shall be delivered to and retained by the Custodian at the will of the Purchaser, in such custodial capacity only). The Seller's records will accurately reflect the sale of each Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded sold by it to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals of such documents to the Indenture Trustee, promptly upon receipt thereofPurchaser. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, property conveyed to it pursuant to this Section 2.1. (cd) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, herein constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the their respective Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under all accounts, chattel papers, general intangibles, payment intangibles, contract rights, certificates of deposit, deposit accounts, instruments, documents, letters of credit, money, advices of credit, investment property, goods and other property consisting of, arising under or related to the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall and hereby does constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto to the UCC-1 financing statements filed with respect to the Mortgage Loans by the Purchaser on the Closing Date, and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office or jurisdiction of incorporation of the Seller, as are necessary to ensure thatperfect and protect the Purchaser's and its assignees' interests in each Mortgage Loan and the proceeds thereof. The Servicer shall file any such continuation statements on a timely basis. (e) In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, if the Seller further agrees that it will cause, at the Seller 's own expense, as soon as practicable after the Closing Date, the MERS(R) System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement were deemed to create a security interest or the Trust Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the specific code which identifies the Indenture Trustee as the assignor of such Mortgage Loan and (b) the series specific code in the field "Pool Field" which identifies the series of the Notes issued in connection with such Mortgage Loans, such security interest would be deemed . The Seller agrees that it will not alter the codes referenced in this paragraph with respect to be a perfected security interest of first priority under applicable law and will be maintained as such throughout any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the Indentureterms of this Agreement.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Residential Asset Mort Prods Inc Gmacm Mort Ln Tr 03 Gh2)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over2.1.1 Seller agrees to sell to Purchaser, and otherwise convey Purchaser agrees to the Purchaserbuy, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, (ii) the Seller's interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with such conveyances by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed without recourse to the order of the Indenture Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Indenture Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage Note; (ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreementtime, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Eligible Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms hereof. Seller acknowledges that (i) the terms offered to Seller represent a premium available only for bulk purchases, and (ii) Purchaser may enter into various financial arrangements to make funds available to acquire Eligible Mortgage Loans. Accordingly, Seller guarantees that the average daily aggregate Acquisition Price for all Eligible Mortgage Loans offered by Seller to Purchaser in any Month shall not fall below fifty percent (50%) of the IndentureSeller’s Quick$ale® Limit. Promptly after If Seller’s daily aggregate Acquisition Price for all Eligible Mortgage Loans falls below Fifty percent (50%) of the Closing Date Seller’s Quick$ale® Limit for any two consecutive months, then Buyer, at Buyer’s sole and absolute discretion may (i) reduce the Seller’s Quick$ale® Limit or (ii) cancel this Agreement. 2.1.2 In connection with such sale, Seller shall deliver, or cause to be delivered, to Purchaser (or after Custodian, if so directed by the date Purchaser) a Loan Purchase Detail (either electronically or via facsimile transmission) and all Submission Package Documents. In the case of transfer a Direct Funding, Seller shall initially deliver Advance Submission Documents and shall, within two Business Days thereafter, deliver Submission Package Documents. 2.1.3 Upon receipt of any Substitute Mortgage Loan), a Loan Purchase Detail and the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost related Submission Package Documents or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defectAdvance Submission Documents, as the case may be, and subject to satisfaction of the conditions precedent contained in Section 2.2 hereof, Purchaser shall purchase the related Eligible Mortgage Loan at the Acquisition Price. 2.1.4 For the avoidance of doubt, Seller shall cause have no right to replace or re-purchase any Purchased Loan other than a Defective Mortgage Loan. 2.1.5 In no event shall Purchaser be required to purchase any Mortgage Loan (a) if the Acquisition Price of such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was notLoan, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently when combined with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals of such documents to the Indenture Trustee, promptly upon receipt thereof. The Purchaser hereby acknowledges its acceptance aggregate Acquisition Price of all rightPurchased Loans then held by Purchaser, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1. (c) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest is in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure excess of the Seller Quick$ale ® Limit; or (b) if such Mortgage Loan is in a category to which a Seller Quick$ale® Sub-limit applies and the filing Acquisition Price of such Mortgage Loan, when combined with the aggregate Acquisition Price of any additional UCC-1 financing statements due to the change Purchased Loans in the principal office same category which are then held by Purchaser, exceeds the applicable Seller Quick$ale ® Sub-limit. 2.1.6 From and after the Acquisition Date, Seller shall hold a copy of each Mortgage Note, together with any Credit File Documents, and other Submission Package Documents or Advance Submission Documents, that are in, or may thereafter come into, its possession, for the Sellerbenefit of Purchaser. Purchaser, as are necessary the case may be, shall appropriately identify such Credit File Documents, Submission Package Documents, or Advance Submission Documents, in Seller’s computer system to ensure that, if this Agreement were deemed to create a security interest in clearly reflect the Mortgage ownership of any Purchased Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indenture.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Finet Com Inc)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, over and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 Loans, as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, other than the servicing rights with respect thereto, (ii) the Seller's ’s interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with any transfer pursuant to this Section 2.1, the Seller agrees (i) to cause the books and records of the Seller to indicate that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement and (ii) to deliver to the Purchaser the Mortgage Loan Schedule, which is attached as Exhibit I to this Agreement, and to the Sale and Servicing Agreement, which is incorporated by reference herein. (c) In connection with such conveyances by the Seller, the Seller shall shall, on behalf of the Purchaser Purchaser, deliver to, to and deposit with Deutsche Bank National Trust Company[ ], as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note Note, including any riders thereto, endorsed by the Seller or the originator, as applicable, without recourse recourse, to the order of “[ ], as Indenture Trustee under the Indenture Trustee or in blankrelating to People’s Financial Realty Mortgage Securities Series [ ], and Mortgage-Backed Notes, Series [ ]”, with any intervening endorsements showing an unbroken chain of endorsements title from the original payee thereof to the Person endorsing it originator to the Indenture Trustee Trustee, or in blank or, with respect to any a Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replacedlost, a lost note affidavit together with indemnity and, if available, a copy of the related lost Mortgage Note; (ii) the original recorded Mortgage, with evidence of recording indicated thereon; provided that if such document is not included because of a delay by the public recording office where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if such original Mortgage andhas been lost, the Seller shall include or cause to be included a copy thereof certified by the appropriate recording office, if the related Mortgage Loan is a MOM Loan, noting the presence available; (iii) an original duly executed Assignment of the MIN Mortgage in recordable form from the Seller or the originator, as applicable, to “[ ], as Indenture Trustee under the Indenture relating to People’s Financial Realty Mortgage Securities Series [ ], Mortgage-Backed Notes, Series [ ]”; (iv) the original intervening Assignments, if any and language indicating that such Mortgage Loan is a MOM Loanif available, with evidence of recording thereon, or, if showing an unbroken chain of title to the original Mortgage has not yet been returned from the public recording office, originator thereof to Person assigning it to the Indenture Trustee; provided that if such document is not included because of a copy of the original Mortgage certified delay by the Seller or the public recording office in which where such original Mortgage document has been recorded, or, if delivered for recordation or such office as a matter of policy does not return the original Security Instrumentof such document, assignments to the Indenture Trustee Seller shall include or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required cause to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification certified by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable; (v) the originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and (vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the policy preliminary title report, title binder or certificate of primary mortgage guaranty insurance, to title commitment on the extent available, if any; (vi) Mortgaged Property with the original or a copy policy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered promptly following the receipt thereof. The Seller need not cause to be recorded any assignment in any jurisdiction under the Indenture Trustee has not been laws of which, as evidenced by an Opinion of Counsel delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee and the Rating Agencies, the recordation of such assignment is not necessary to protect the Indenture Trustee’s interest in accordance with this Agreement the related Mortgage Loan; provided, however, that notwithstanding the delivery of any Opinion of Counsel, each assignment shall be submitted for recording by the benefit Seller, at no expense to the Trust or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes evidencing at least 25% of the Noteholders by including Note Principal Balance, (ii) the occurrence of a Master Servicer Event of Default or deletingEvent of Default under the Indenture, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a master servicing transfer and (v) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Upon receipt of written notice from the Indenture Trustee that recording of the assignments is required pursuant to one or more of the conditions set forth in the case preceding sentence, the Seller shall be required to deliver such assignments for recording as provided above, promptly and in any event within 30 days following receipt of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loansnotice. The Seller further agrees shall furnish the Indenture Trustee, or its designated agent, with a copy of each assignment submitted for recording. In the event that it will notany such assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute assignment prepared or have such defect cured, as the case may be, and will thereafter cause each such assignment to be duly recorded. To the extent an assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, assignments for states that are not permit covered by the Master Servicer to, alter Opinion of Counsel in the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loanprior paragraph), the Seller, at its own expense, shall complete and submit it for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) aboverecords, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In Notwithstanding anything to the contrary contained in this Section 2.1, in those instances where an the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Indenture Trustee of a copy of such Mortgage, certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Indenture Trustee because of any original intervening assignment of Mortgage was notdefect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this section. If a defect in any Mortgage File is discovered which materially and adversely affects the value of the related Mortgage Loan, or the interests of the Noteholders or Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust, at the Purchase Price, within 90 days after the date on which the Seller was notified of such defect or (ii) cure such defect, or (iviii) above, delivered by substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for substitutions. The Seller shall exercise its best reasonable efforts to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered to the originals Custodian, on behalf of such documents to the Indenture Trustee, promptly upon receipt thereofwithin 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.1. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1, other than with respect to servicing rights with respect to the Mortgage Loans. (cd) The parties hereto intend that the transactions transaction set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute herein constitutes a sale by the Seller to the Purchaser of all the Seller's ’s right, title and interest in and to the Mortgage Loans (other than with respect to the related servicing rights) and other property as and to the extent described above. In the event the transactions transaction set forth herein are is deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's ’s right, title and interest in, to and under the Mortgage Loans (other than with respect to the related servicing rights) and such other property, to secure all of the Seller's ’s obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including including, without limitation limitation, the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the aggregate Stated Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest perfect and protect the Purchaser’s interests in each Mortgage Loan and the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indentureproceeds thereof.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Peoples Choice Home Loan Securities Corp)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, other than the servicing rights with respect thereto, (ii) the Seller's interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with any transfer pursuant to this Section 2.1, the Seller agrees (i) to cause the books and records of the Seller to indicate that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement and (ii) to deliver to the Purchaser the Mortgage Loan Schedule which is attached as Exhibit 1 to this Agreement, and to the Pooling and Servicing Agreement, as which is incorporated by reference herein. (c) In connection with such conveyances by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed without recourse (including all riders thereto) bearing all intervening endorsements necessary to the order of the Indenture Trustee or in blank, and showing an unbroken show a complete chain of endorsements from the original payee thereof payee, endorsed "Pay to the Person endorsing it to order of _____without recourse", via original signature, and, if previously endorsed, signed in the Indenture Trustee or in blank name of the last endorsee by a duly qualified officer of the last endorsee or, with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a lost note affidavit together Lost Note Affidavit with indemnity. If the Mortgage Loan was acquired by the last endorsee in a copy merger, the endorsement must be by "[name of last endorsee], successor by merger to [name of the related predecessor]." If the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, the endorsement must be by "[name of last endorsee], formerly known as [previous name]." Within 45 days after the Closing Date, the Seller shall endorse or cause to be endorsed the Mortgage Note in the name of "HSBC Bank USA, National Association, as trustee under the Pooling and Servicing Agreement relating to Opteum Mortgage Acceptance Corporation, Asset-Backed Pass-Through Certificates, Series 2005-1" for each Mortgage Note; (ii) the The original Mortgage and, if the related Mortgage Loan is a MOM Loanrecorded Mortgage, noting the presence of the MIN of the Mortgage Loan and language indicating that such the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon, or, ; provided that if the original Mortgage has such document is not yet been returned from the public recording office, included because of a copy of the original Mortgage certified delay by the Seller or the public recording office in which where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if such original Mortgage has been recordedlost, or, if the original Security Instrument, assignments to the Indenture Trustee Seller shall include or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required cause to be included thereona copy thereof certified by the appropriate recording office, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable formif available; (iii) unless the Mortgage Loan is a MOM Loanregistered on the MERS(R) System, a certified copy an original duly executed Assignment of the assignment (which may be Mortgage in recordable form from the form of a blanket assignment if permitted in Seller or the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Companyoriginator, as Indenture Trustee”applicable, to "HSBC Bank USA, National Association, as trustee under the Pooling and Servicing Agreement relating to Opteum Mortgage Acceptance Corporation, Asset-Backed Pass-Through Certificates, Series 2005-1" for each Mortgage Note; (iv) The original intervening Assignments, if any and if available, with evidence of recording with respect thereon, showing an unbroken chain of title to each the Mortgage from the originator thereof to Person assigning it to the Trustee (or to MERS, if the Mortgage Loan in is registered on the name MERS(R) System and noting the presence of a MIN); provided that if such document is not included because of a delay by the Indenture Trustee thereon (public recording office where such document has been delivered for recordation or if (A) such office as a matter of policy does not return the original Security Instrumentof such document, assignments to the Indenture Trustee Seller shall include or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required cause to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification certified by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable; (v) The originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and (vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy or certificate of primary mortgage guaranty insurancethe insurance to be delivered promptly following the receipt thereof; The Seller need not cause to be recorded any Assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the extent availableTrustee and the Rating Agencies, if any; (vi) the original or a copy recordation of such Assignment is not necessary to protect the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect Trustee's interest in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan; PROVIDED, HOWEVER, notwithstanding the delivery of any Opinion of Counsel, each Assignment shall be submitted for recording by the Seller, at no expense to the Trust or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates evidencing at least 25% of the Voting Rights, (ii) the occurrence of a Event of Default under the Pooling and Servicing Agreement, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 of the Pooling and Servicing Agreement and (v) if the Seller is not the Master Servicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Upon receipt of written notice from the Trustee that recording of the Assignments is required pursuant to one or more of the conditions set forth in the preceding sentence, the Seller shall be required to deliver such Assignments for recording as provided above, promptly and in any event within 30 days following receipt of such notice. The Seller shall furnish the Trustee, or its designated agent, with a copy of each Assignment submitted for recording. In the interests event that any such Assignment is lost or returned unrecorded because of the Indenture Trustee (as pledgee of the Mortgage Loans)a defect therein, the Noteholders Seller shall promptly have a substitute Assignment prepared or have such defect cured, as the Certificateholders case may be, and thereafter cause each such Assignment to be duly recorded. To the extent an Assignment referred to in such Mortgage Loan, including if any document clause (c)(iii) above is required to be delivered to recorded (including, without limitation, Assignments for states which are not covered by the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if Opinion of Counsel in the Seller has submitted such assignment for recording pursuant to the terms of the second following prior paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, expense shall complete and submit it for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) aboverecords, with such assignment Assignment completed in favor of the Indenture Trustee. While such assignment Assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignmentAssignment. If any assignment Assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment Assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment Assignment to be recorded in accordance with this paragraph. In Notwithstanding anything to the contrary contained in this Section 2.1, in those instances where an the public recording office retains the original Mortgage or any original intervening assignment of Mortgage was not, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreementafter it has been recorded, the Seller will deliver or cause shall be deemed to be delivered have satisfied its obligations hereunder upon delivery to the originals Trustee of a copy of such documents to the Indenture Trustee, promptly upon receipt thereof. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1. (c) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute a sale certified by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not public recording office to be a sale, the Seller hereby grants to the Purchaser a security interest in all true and complete copy of the Seller's right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indenturerecorded original thereof.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Opteum Mortgage Acceptance Corp Asset Backed Pass-Through Certificates, 2005-1)

Sale of Mortgage Loans. (a) The Seller, by concurrently with the execution and delivery of this Agreement, does hereby sell, transfer, assign, set over, over and otherwise convey convey, to the Purchaser, without recourse but recourse, (subject to the terms of this Agreement, all of its right, title Sections 2.2 and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, 3.1) (i) all of its right, title and interest in the and to each Mortgage Loans identified on Exhibit 1 as of the Closing DateLoan, including the related Cut-off Off Date Principal Balance, Balance and all collections in respect of interest accruing thereon on and principal received after the Cut-off Date, and all collections Off Date (other than payments in respect of accrued interest and principal due after the Cut-off Dateon or before March 1, 2007); (ii) the Seller's property which secured such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies related to in respect of the Mortgage Loans and (iiiv) all proceeds of any of the foregoing. (b) In connection with such conveyances by the Sellertransfer, assignment and conveyance the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Companywith, as custodian for the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage LoanLoan (the “Related Documents”) and the related Mortgage Loan Schedule in computer readable format: (i) the The original Mortgage Note endorsed without recourse to the order of the Indenture Trustee or in blankNote, with all prior and intervening endorsements showing an unbroken a complete chain of endorsements from the original payee thereof originator of the Mortgage Loan to the Person so endorsing it the Mortgage Loan to the Indenture Trustee, endorsed by such Person “Pay to the order of HSBC Bank USA, National Association, as Indenture Trustee under the applicable agreement, without recourse” and signed, by facsimile or manual signature, in blank or, with respect to any the name of the Seller by a Responsible Officer; (ii) For each Mortgage Loan as to which (regardless of whether of not such Mortgage Loan is a MERS Mortgage Loan), any of: (1) the original Mortgage Note and related power of attorney, if any, with evidence of recording thereon or electronic confirmation acceptable to prudent lenders that the Mortgage was filed pursuant to an e-filing system recognized by the related county filing office, (2) (A) a copy of the Mortgage, if any, certified as a true copy of the original Mortgage by a Responsible Officer of the Seller by facsimile or manual signature or by the closing attorney or by an officer of the title insurer or agent of the title insurer that issued the related title insurance policy, in such case, if the original has been lost or destroyed transmitted for recording until such time as the original is returned by the public recording office and has not been replaced, a lost note affidavit together with (B) a copy of the related Mortgage Note; power of attorney, if any, or (ii3) a copy of the original recorded Mortgage andand a copy of the related power of attorney, if any, certified by the related public recording office. For each Mortgage Loan that is a MOM MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN of the related Mortgage Loan and either language indicating that such the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment thereof to MERS, with evidence of recording indicated thereon, or a copy of the Mortgage certified by the public recording office in which such Mortgage has been recorded; (iii) For each Mortgage Loan, the original Assignment of Mortgage in recordable form, from the Seller in blank, or to “HSBC Bank USA, National Association, as Indenture Trustee under the applicable agreement”; (iv) The original lender’s title insurance policy or a true copy thereof or, if such original lender’s title insurance policy has been lost, a copy thereof certified by the appropriate title insurer to be true and complete or, if such lender’s title insurance policy has not been issued as of the Closing Date, a marked up commitment (binder) to issue such policy; (v) For each Mortgage Loan that was not a MERS Mortgage Loan at its origination, all intervening assignments, if any, showing a complete chain of assignments from the originator to the Seller, including any recorded warehousing assignments, with evidence of recording thereon, oror a copy thereof certified by a Responsible Officer of the Seller by facsimile or manual signature, or by the closing attorney or by an officer of the title insurer or agent of the title insurer that issued the related title insurance policy, as a true copy of the original of such intervening assignments if the original Mortgage has not yet been transmitted for recording until such time as the original is returned from by the public recording office, office or a copy of the original Mortgage recorded intervening assignments certified by the Seller or the public recording office in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if anyoffice; (vi) the original or a copy Originals of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insuranceall assumption, written assurance, substitution and modification agreements, if any; and (vii) In the case of a Cooperative Loan, the originals of the following documents or instruments: 1. The Cooperative Shares, together with a stock power in blank; 2. The executed Security Agreement; 3. The executed Proprietary Lease; 4. The executed Recognition Agreement; 5. The executed assignment of Recognition Agreement; 6. The executed UCC-1 financing statements with evidence of recording thereon which have been filed in all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document places required to be delivered perfect the Seller’s interest in the Cooperative Shares and the Proprietary Lease; and 7. Executed UCC-3 financing statements or other appropriate UCC financing statements required by state law, evidencing a complete and unbroken line from the mortgagee to the Indenture Trustee has not been delivered with evidence of recording thereon (provided that or in a Mortgage File will not be deemed to contain a defect form suitable for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraphrecordation), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In addition, in connection with the assignment of any MERS Mortgage Loan registered on the MERS® SystemLoan, the Seller further agrees that it will cause, at the Seller's own ’s expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders Noteholders, by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing this Agreement) in such computer files (a) the code in information required by the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies MERS® System to identify the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Servicer or the Master Servicer to, to alter the codes information referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraphAgreement. In instances where, for a Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage is not delivered as provided above, and in instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with assignments called for by clause (iiv) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreementabove are unavailable, the Seller will deliver or cause to be delivered the originals original recorded Mortgage and intervening assignments to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee promptly upon receipt thereof but in no event later than one year after the Closing Date. The Seller hereby confirms to the Purchaser that it has caused the portions of the Electronic Ledger relating to the Mortgage Loans to be clearly and unambiguously marked, and has made the appropriate entries in its general accounting records, to indicate that such documents Mortgage Loans have been transferred to the Indenture Trustee, promptly upon receipt thereof. The Purchaser hereby acknowledges its acceptance as designee of all rightthe Purchaser, title and interest to constitute part of the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1Trust in accordance with the terms of the trust created hereunder. (c) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute herein be a sale by the Seller to the Purchaser of all the Seller's ’s right, title and interest in and to the Mortgage Loans and other property as described above and the sale by the Purchaser to the Trust of all the Purchaser’s right, title and interest in and to the extent Mortgage Loans and other property described above. In the event the transactions either transaction set forth herein are is deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser, and the Purchaser hereby grants to the Indenture Trustee, a security interest in all of the Seller's its respective right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, property described above; and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees and the Purchaser shall, to the extent consistent with this Agreement, take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the IndentureAgreement. Except as may otherwise expressly be provided herein, neither the Seller nor the Purchaser shall assign, sell, dispose of or transfer any interest in the Trust or any portion thereof, or permit the Trust or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. In the event that the parties hereto have failed to transfer the entire legal ownership in and to each Mortgage Loan to the Trust, the parties hereto intend that this document operate to transfer the entire equitable ownership interest in and to each Mortgage Loan to the Trust. (d) Except with respect to any MERS Mortgage Loan, within thirty (30) days of the Closing Date, the Seller, at its own expense, shall prepare and send for recording the Assignments of Mortgage in favor of the Indenture Trustee, in the appropriate real property or other records. With respect to any Assignment of Mortgage as to which the related recording information is unavailable within thirty (30) days following the Closing Date, such Assignment of Mortgage shall be submitted for recording within thirty (30) days after receipt of such information but in no event later than one year after the Closing Date. The Indenture Trustee or the Custodian on behalf of the Indenture Trustee shall be required to retain a copy of each Assignment of Mortgage submitted for recording. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Seller shall promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Seller shall be required to submit each such Assignment of Mortgage for recording. Any failure of the Seller to comply with this Section 2.1(d) shall result in the obligation of the Seller to purchase or substitute for the related Mortgage Loans pursuant to the provisions of Section 2.2. (e) [Reserved]. (f) If the Seller is given notice that a Mortgage File is defective or incomplete and if the Seller does not correct or cure such omission or defect within the 90-day period specified in this Section 2.1(f), the Seller shall purchase such Mortgage Loan from the Trust on the Determination Date in the month following the month in which such 90-day period expired at the Purchase Price of such Mortgage Loan. At any time the Seller exercises its option to repurchase any Mortgage Loan pursuant to Section 3.1, the Seller shall notify the Purchaser, the Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee of any such repurchase no later than five Business Days prior to the Determination Date of the month in which it wishes to repurchase such Mortgage Loans and the Seller shall repurchase such Mortgage Loan from the Trust on such Determination Date. The Purchase Price for any purchased or repurchased Mortgage Loan shall be delivered to the Servicer for deposit in the Collection Account no later than the applicable Determination Date; and, upon receipt by the Indenture Trustee or the Custodian on behalf of the Indenture Trustee of written notification of such deposit signed by a Responsible Officer of the Seller, the Indenture Trustee or the Custodian on behalf of the Indenture Trustee shall, in accordance with Section 3.07 of the Servicing Agreement, release to the Seller the related Mortgage File and the Indenture Trustee or the Custodian shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in the Seller or its designee any Mortgage Loan released pursuant hereto. It is understood and agreed that the obligation of the Seller to purchase any Mortgage Loan as to which a material defect in or omission of a constituent document exists shall constitute the sole remedy against the Seller respecting such defect or omission available to the Servicer (in its role as such), the Master Servicer, the Noteholders, the Securities Administrator or the Indenture Trustee on behalf of Noteholders. If pursuant to the foregoing provisions the Seller repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Seller shall cause the Servicer, at the Seller’s expense, to either (i) cause MERS to execute and deliver an Assignment of Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations or (ii) cause MERS to designate on the MERS® System the Seller as the beneficial holder of such Mortgage Loan. The Seller, promptly following the transfer of (i) a Mortgage Loan from or (ii) an Eligible Substitute Mortgage Loan to the Trust pursuant to this Section 2.1 or Section 3.1, as the case may be, shall amend the Mortgage Loan Schedule, appropriately mxxx the Electronic Ledger and make appropriate entries in its general account records to reflect such transfer and the addition of any Eligible Substitute Mortgage Loan, if applicable.

Appears in 1 contract

Samples: Mortgage Loan Sale and Contribution Agreement (Renaissance Home Equity Loan Trust 2007-1)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, over and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 Loans, as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, other than the servicing rights with respect thereto, (ii) the Seller's ’s interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with any transfer pursuant to this Section 2.1, the Seller agrees (i) to cause the books and records of the Seller to indicate that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement and (ii) to deliver to the Purchaser the Mortgage Loan Schedule, which is attached as Exhibit 1 to this Agreement, and to the Sale and Servicing Agreement, which is incorporated by reference herein. (c) In connection with such conveyances by the Seller, the Seller shall shall, on behalf of the Purchaser Purchaser, deliver to, to and deposit with Deutsche Bank Xxxxx Fargo Bank, National Trust CompanyAssociation, as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note Note, including any riders thereto, endorsed by the Seller or the originator, as applicable, without recourse recourse, to the order of “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture Trustee or in blankrelating to People’s Choice Home Loan Securities Trust Series 2005-2, and Mortgage-Backed Notes, Series 2005-2”, with any intervening endorsements showing an unbroken chain of endorsements title from the original payee thereof to the Person endorsing it originator to the Indenture Trustee Trustee, or in blank or, with respect to any a Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replacedlost, a lost note affidavit together with indemnity and, if available, a copy of the related lost Mortgage Note; (ii) the original recorded Mortgage, with evidence of recording indicated thereon; provided that if such document is not included because of a delay by the public recording office where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if such original Mortgage andhas been lost, the Seller shall include or cause to be included a copy thereof certified by the appropriate recording office, if the related Mortgage Loan is a MOM Loan, noting the presence available; (iii) an original duly executed Assignment of the MIN Mortgage in recordable form from the Seller or the originator, as applicable, to “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture relating to People’s Choice Home Loan Securities Trust Series 2005-2, Mortgage-Backed Notes, Series 2005-2”; (iv) the original intervening Assignments, if any and language indicating that such Mortgage Loan is a MOM Loanif available, with evidence of recording thereon, or, if showing an unbroken chain of title to the original Mortgage has not yet been returned from the public recording officeoriginator thereof to Person assigning it to the Indenture Trustee; provided, that if such document is not included because of a copy of the original Mortgage certified delay by the Seller or the public recording office in which where such original Mortgage document has been recorded, or, if delivered for recordation or such office as a matter of policy does not return the original Security Instrumentof such document, assignments to the Indenture Trustee Seller shall include or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required cause to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification certified by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable; (v) the originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and (vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the policy preliminary title report, title binder or certificate of primary mortgage guaranty insurance, to title commitment on the extent available, if any; (vi) Mortgaged Property with the original or a copy policy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered promptly following the receipt thereof. The Seller need not cause to be recorded any assignment in any jurisdiction under the Indenture Trustee has not been laws of which, as evidenced by an Opinion of Counsel delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee and the Rating Agencies, the recordation of such assignment is not necessary to protect the Indenture Trustee’s interest in accordance with the related Mortgage Loan; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment shall be submitted for recording by the Seller, at no expense to the Trust or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes evidencing at least 25% of the Note Principal Balance, (ii) the occurrence of a Master Servicer Event of Default or Event of Default under the Indenture, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a master servicing transfer as described in Section 6.02 of this Agreement for and (v) the benefit occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Upon receipt of written notice from the Indenture Trustee that recording of the Noteholders by including (assignments is required pursuant to one or deleting, more of the conditions set forth in the case preceding sentence, the Seller shall be required to deliver such assignments for recording as provided above, promptly and in any event within 30 days following receipt of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loansnotice. The Seller further agrees shall furnish the Indenture Trustee, or its designated agent, with a copy of each assignment submitted for recording. In the event that it will notany such assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute assignment prepared or have such defect cured, as the case may be, and will thereafter cause each such assignment to be duly recorded. To the extent an assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, assignments for states that are not permit covered by the Master Servicer to, alter Opinion of Counsel in the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loanprior paragraph), the Seller, at its own expense, shall complete and submit it for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) aboverecords, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In Notwithstanding anything to the contrary contained in this Section 2.1, in those instances where an the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Indenture Trustee of a copy of such Mortgage, certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Indenture Trustee because of any original intervening assignment of Mortgage was notdefect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this section. If a defect in any Mortgage File is discovered which materially and adversely affects the value of the related Mortgage Loan, or the interests of the Noteholders or Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust, at the Purchase Price, within 90 days after the date on which the Seller was notified of such defect or (ii) cure such defect, or (iviii) above, delivered by substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for substitutions. The Seller shall exercise its best reasonable efforts to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered to the originals Custodian, on behalf of such documents to the Indenture Trustee, promptly upon receipt thereofwithin 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.1. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1, other than with respect to servicing rights with respect to the Mortgage Loans. (cd) The parties hereto intend that the transactions transaction set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute herein constitutes a sale by the Seller to the Purchaser of all the Seller's ’s right, title and interest in and to the Mortgage Loans (other than with respect to the related servicing rights) and other property as and to the extent described above. In the event the transactions transaction set forth herein are is deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's ’s right, title and interest in, to and under the Mortgage Loans (other than with respect to the related servicing rights) and such other property, to secure all of the Seller's ’s obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including including, without limitation limitation, the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the aggregate Stated Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest perfect and protect the Purchaser’s interests in each Mortgage Loan and the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indentureproceeds thereof.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Peoples Choice Home Loan Securities Trust Series 2005-2)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over2.1.1 Seller agrees to sell to Purchaser, and otherwise convey Purchaser agrees to the Purchaserbuy, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, (ii) the Seller's interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with such conveyances by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed without recourse to the order of the Indenture Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Indenture Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage Note; (ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreementtime, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Eligible Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms hereof. Seller acknowledges that (i) the terms offered to Seller represent a premium available only for bulk purchases, and (ii) Purchaser may enter into various financial arrangements to make funds available to acquire Eligible Mortgage Loans. Accordingly, Seller guarantees that the average daily aggregate Acquisition Price for all Eligible Mortgage Loans offered by Seller to Purchaser in any Month shall not fall below fifty percent (50%) of the IndentureSeller's Quick$ale(R) Limit. Promptly after If Seller's daily aggregate Acquisition Price for all Eligible Mortgage Loans falls below Fifty percent (50%) of the Closing Date Seller's Quick$ale(R) Limit for any two consecutive months, then Buyer, at Buyer's sole and absolute discretion may (i) reduce the Seller's Quick$ale(R) Limit or (ii) cancel this Agreement. 2.1.2 In connection with such sale, Seller shall deliver, or cause to be delivered, to Purchaser (or after Custodian, if so directed by the date Purchaser) a Loan Purchase Detail (either electronically or via facsimile transmission) and all Submission Package Documents. In the case of transfer a Direct Funding, Seller shall initially deliver Advance Submission Documents and shall, within two Business Days thereafter, deliver Submission Package Documents. 2.1.3 Upon receipt of any Substitute Mortgage Loan), a Loan Purchase Detail and the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost related Submission Package Documents or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defectAdvance Submission Documents, as the case may be, and subject to satisfaction of the conditions precedent contained in Section 2.2 hereof, Purchaser shall purchase the related Eligible Mortgage Loan at the Acquisition Price. 2.1.4 For the avoidance of doubt, Seller shall cause have no right to replace or re-purchase any Purchased Loan other than a Defective Mortgage Loan. 2.1.5 In no event shall Purchaser be required to purchase any Mortgage Loan (a) if the Acquisition Price of such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was notLoan, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently when combined with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals of such documents to the Indenture Trustee, promptly upon receipt thereof. The Purchaser hereby acknowledges its acceptance aggregate Acquisition Price of all rightPurchased Loans then held by Purchaser, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1. (c) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest is in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure excess of the Seller Quick$ale(R) Limit; or (b) if such Mortgage Loan is in a category to which a Seller Quick$ale(R). Sub-limit applies and the filing Acquisition Price of such Mortgage Loan, when combined with the aggregate Acquisition Price of any additional UCC-1 financing statements due to the change Purchased Loans in the principal office same category which are then held by Purchaser, exceeds the applicable Seller Quick$ale(R) Sub-limit. 2.1.6 From and after the Acquisition Date, Seller shall hold a copy of each Mortgage Note, together with any Credit File Documents, and other Submission Package Documents or Advance Submission Documents, that are in, or may thereafter come into, its possession, for the Sellerbenefit of Purchaser. Purchaser, as are necessary the case may be, shall appropriately identify such Credit File 13 Documents, Submission Package Documents, or Advance Submission Documents, in Seller's computer system to ensure that, if this Agreement were deemed to create a security interest in clearly reflect the Mortgage ownership of any Purchased Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indenture.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Geneva Financial Corp)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreementrecourse, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, : (i) all of its right, title and interest in the Mortgage Loans identified Loans, all interest accruing thereon and all collections in respect thereof received on Exhibit 1 or after the Cut-off Date; (ii) property which secured a Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) the interest of the Seller in any insurance policies in respect of the Mortgage Loans; and (iv) all proceeds of the foregoing. Such conveyance shall be deemed to be made: with respect to the Cut-off Date Loan Balances, as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, (ii) the Seller's interest in any insurance policies related subject to the Mortgage Loans and receipt by the Seller of consideration therefor as provided herein under clause (iiib) all proceeds of the foregoingSection 2.2. (b) In connection with such conveyances conveyance, the Seller further agrees, at its own expense, on or prior to the Closing Date to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement and to deliver to the Purchaser true and complete lists of all of the Mortgage Loans specifying for each Mortgage Loan (i) its account number and (ii) its Cut-off Date Loan Balance. Such lists, which form part of the Mortgage Loan Schedule, shall be marked as Exhibit 1 to this Agreement and are hereby incorporated into and made a part of this Agreement. (c) In connection with such conveyance by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for the Indenture TrusteeCustodian, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed without recourse to the order of the Indenture Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Indenture Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage NoteLost Note Affidavit; (ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded; [NY01:245061.5] 16069-00376 01/29/97 9:30pm (iii) assignments (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage in recordable form to "The Chase Manhattan Bank as trustee" c/o the Seller at an address specified by the Seller; (iv) originals of any intervening assignments of the Mortgage, with evidence of recording thereon, or, if the original Security Instrument, assignments to the Indenture Trustee or of any such intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have assignment has not yet been returned to from the Seller public recording office, a copy of such original intervening assignment certified by the public recording office in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form;which such original intervening assignment has been recorded; and (iiiv) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of each assumption, modification, consolidation or substitution agreement, if any, relating to the original, which has been transmitted Mortgage Loan. Within the time period for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion review of Counsel has been provided as each Mortgage File set forth in Section 2.01(b) 2.3 of the Sale and Servicing Custodial Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders Noteholders, the Certificateholders or the Certificateholders Credit Enhancer in such Mortgage Loan, including if the Seller's failure to deliver any document required to be delivered to the Custodian on behalf of the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a an Eligible Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with Within 60 days after the assignment receipt by the Master Servicer of any Mortgage Loan registered on the MERS® Systemrecording information, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, expense shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee Custodian shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee Custodian because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, respective Custodian prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals of such documents to the Indenture Trustee, such Custodian promptly upon receipt thereof. [NY01:245061.5] 16069-00376 01/29/97 9:30pm The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1. (cd) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, herein constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware Minnesota (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage LoansDate), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest perfect and protect the Purchaser's interests in each Mortgage Loan and the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indentureproceeds thereof.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Residential Funding Mortgage Securities Ii Inc)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assignand in connection therewith hereby assigns, set over, and otherwise convey to the Purchaser, effective as of the Closing Date, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as of the Closing Date, including whether now existing or hereafter acquired and wherever located, on the related Cut-off Closing Date Principal Balance, all interest accruing thereon on and after as of the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, (ii) the Seller's interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with such conveyances by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for the Indenture Trustee (or a Custodian on behalf of the Trustee), on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) with respect to each Mortgage Loan, other than a Cooperative Loan: (A) the original Mortgage Note Note, endorsed without recourse “Pay to the order of [_________], as Trustee for the Indenture Trustee registered holders of the Shellpoint Mortgage Acceptance Trust 20[__]-[__] Mortgage Pass-Through Certificates, Series 20[__]-[__] , without recourse”, or in blankendorsed “Pay to the order of _______ without recourse”, and signed in the name of the last named endorsee by an authorized officer together with all prior and intervening endorsements showing an unbroken a complete chain of endorsements endorsement from the original payee thereof originator to the Person endorsing it to the Indenture Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage Notelast endorsee; (iiB) the original Mortgage and, if the related Mortgage Loan is a MOM LoanMortgage, noting the presence of the MIN of the Mortgage Loan and language indicating that such the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereonthereon which have been recorded, or, if the original Mortgage has not yet been returned from the public with evidence of recording office, thereon or a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded; (C) Unless the Mortgage Loan is registered on the MERS® System, oran original Assignment of the Mortgage (A) executed in the following form “[__________], as Trustee for the registered holders of the Shellpoint Mortgage Acceptance Trust 20[__]-[__] Mortgage Pass-Through Certificates, Series 20[__]-[__]”, or (B) in the blank, which assignment appears to be in form and substance acceptable for recording; (D) the original recorded Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System and noting the presence of a MIN) as contemplated by the immediately preceding clause (C), if applicable and only to the extent available to the Depositor with evidence of recording thereon; (E) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon, if any; (F) a copy of any guarantee executed in connection with the Mortgage Note; (G) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage; and (H) the original power of attorney, if applicable; or (ii) with respect to each Mortgage Loan that is a Cooperative Loan: (A) the original Mortgage Note, endorsed “Pay to the order of [__________], as Trustee for the registered holders of the Shellpoint Mortgage Acceptance Trust 20[__]-[__] Mortgage Pass-Through Certificates, Series 20[__]-[__], without recourse”, or endorsed “Pay to the order of _______ without recourse”, and signed in the name of the last named endorsee by an authorized officer together with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee; (B) the original duly executed assignment of Security InstrumentAgreement to the Trustee; (C) the acknowledgment copy of the original executed Form UCC-1 (or certified copy thereof) with respect to the Security Agreement, and any required continuation statements; (D) the acknowledgment copy of the original executed Form UCC-3 with respect to the Security Agreement, indicating the Trustee as the assignee of the secured party; (E) the stock certificate representing the Cooperative Assets allocated to the cooperative unit, with a stock power in blank attached; (F) the original collateral assignment of the proprietary lease by Mortgagor to the originator; (G) a copy of the recognition agreement; (H) if applicable and to the extent available, the original intervening assignments, including warehousing assignments, if any, showing, to the extent available, an unbroken chain of the related Mortgage Loan to the Trustee, together with a copy of the related Form UCC-3 with evidence of filing thereon; and (I) the originals of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loan; provided, however, that in lieu of the foregoing, the Seller may deliver the following documents, under the circumstances set forth below: (x) in lieu of the original Mortgage, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument Mortgage required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) within 270 days of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing AgreementClosing Date, the Seller may deliver a true copy thereof with an Officer’s Certificate certifying that such Mortgage, assignment to the Trustee or intervening assignment has been delivered to the appropriate recording office for recording; and (y) in lieu of the Mortgage, assignment to the Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Seller, to such effect) the Seller may deliver photocopies of such documents containing an original certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy judicial or other governmental authority of the originaljurisdiction where such documents were recorded; and provided, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreementfurther, shall be in recordable form); (iv) all intervening assignments of the Security Instrumenthowever, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased have been prepaid in accordance with full after the Sale Cut-off Date and Servicing Agreement) prior to the Closing Date, the Seller, in lieu of delivering the above documents, may deliver to the Trustee a certification to such computer files (a) the code effect and shall pay all amounts paid in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series respect of the Notes issued in connection with such Mortgage LoansLoans to the Trustee on the Closing Date. The Seller further agrees that it will notshall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Trustee promptly after they are received. The Seller may, in lieu of delivering the original of the documents set forth in Section 2.1(b)(i) and (ii) (other than Section 2.1(b)(i)(A) and Section 2.1(b)(ii)(A)) (or copies thereof as permitted by Section 2.1) to the Trustee, deliver such documents to the Master Servicer, and will not permit the Master Servicer to, alter shall hold such documents in trust for the codes referenced use and benefit of all present and future Certificateholders until such time as is set forth in this paragraph the next sentence. Within 60 days following the earlier of (i) the receipt of the original of all of the documents or instruments set forth in Section 2.1(b)(i) and (ii) (other than Section 2.1(b)(i)(A) and Section 2.1(b)(ii)(A)) (or copies thereof as permitted by such Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those documents with respect to any Mortgage Loan during the term or all of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with Loans then being held by the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan)Master Servicer, the Seller, at its own expense, Master Servicer shall deliver a complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals set of such documents to the Indenture Trustee. The Seller shall, at its expense, cause the Assignment of the Mortgage to the Trustee to be recorded not later than 270 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, promptly upon receipt thereofthe earliest to occur of: (i) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than [__]% of the Trust Fund, (ii) the occurrence of a Master Servicer Event of Termination, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 of the Pooling and Servicing Agreement and (v) with respect to any one assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. If any original Mortgage Note referred to in Section 2.1(b)(i)(A) or 2.1(b)(ii)(A) above cannot be located, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee of a photocopy of such Mortgage Note, if available, with a Lost Note Affidavit. If any of the original Mortgage Notes for which a Lost Note Affidavit was delivered to the Trustee is subsequently located, such original Mortgage Note shall be delivered to the Trustee within three Business Days. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1. (c) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indenture.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Shellpoint Mortgage Acceptance LLC)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, on the Closing Date and as of the Cut-off Date: (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as of the Closing Date, including other than the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, (ii) the Seller's interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoingservicing rights with respect thereto. (b) In connection with such conveyances by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed without recourse recourse, to the order of the Indenture Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Indenture Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage NoteLost Note Affidavit; (ii) the original recorded Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded, orrecorded to be a true and complete copy of the original Mortgage submitted for recording; (iii) an assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage in blank or to the Trustee (or to MERS, if the original Security Instrument, assignments to Mortgage Loan is registered on the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt MERS® System and noting the presence of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording a MIN) and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be otherwise in recordable form; (iiiiv) unless the original recorded Assignment or Assignments of the Mortgage Loan is a MOM Loanshowing an unbroken chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the assignment original Assignment submitted to the title insurance company for recording; (which may be in v) either (a) the form original title insurance policy, or, if such policy has not been issued, any one of an original or a blanket assignment if permitted in copy of the jurisdiction in which preliminary title report, title binder or title commitment on the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name original policy of the Indenture Trustee thereon insurance to be delivered promptly following the receipt thereof or (or if (Ab) a copy of the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(btitle insurance policy; (vi) a copy of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be related hazard insurance policy; and (vii) a true and correct copy of any assumption, modification, consolidation or substitution agreement. The Seller shall deliver to the originalTrustee: (a) either the original recorded Mortgage, which has been transmitted for recording” or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (Bii) above; and (b) either the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) original Assignment or Assignments of the Sale and Servicing AgreementMortgage, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) , showing an unbroken chain of assignment from the originator to the Seller, or in the event such original or cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the policy or certificate of primary mortgage guaranty insuranceappropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the extent availableTrustee pursuant to clause (iv) above. However, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect Seller need not cause to be recorded any assignment in any Mortgage File jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the Trustee, the Certificate Insurer and the Rating Agencies, the recordation of such assignment is discovered which may materially and adversely affect not necessary to protect the value of Trustee’s interest in the related Mortgage Loan; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust or the interests Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates evidencing at least 25% of the Indenture Trustee Voting Rights, (ii) the occurrence of a Event of Default under the Pooling and Servicing Agreement, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as pledgee described in Section 7.02 of the Mortgage Loans)Pooling and Servicing Agreement and (v) if the Seller is not the Servicer and with respect to any one assignment, the Noteholders occurrence of a bankruptcy, insolvency or the Certificateholders in such Mortgage Loan, including if any document required to be delivered foreclosure relating to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed Mortgagor under the related Mortgage. To the extent an assignment referred to contain a defect for an unrecorded assignment under in clause (iii) above if the Seller has submitted such assignment for recording pursuant is required to the terms of the second following paragraph)be recorded, the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, expense shall complete and submit it for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) aboverecords, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening connection with the assignment of any Mortgage was notLoan registered on the MERS® System, in accordance with clause (ii) or (iv) abovethe Seller further agrees that it will cause, delivered at the Seller’s own expense, as of the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture TrusteeTrustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, prior to or concurrently in the case of Mortgage Loans which are repurchased in accordance with the execution Pooling and delivery Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. Notwithstanding anything to the contrary contained in this AgreementSection 2.1, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Seller will shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Trustee because of any defect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this section. The Seller shall exercise its best reasonable efforts to deliver or cause to be delivered to the originals Trustee within 120 days of the Closing Date the original or a photocopy of the title insurance policy with respect to each Mortgage Loan assigned to the Trustee pursuant to this Section 2.1. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Certificateholders or the Certificate Insurer in such Mortgage Loan including if any document required to be delivered to the Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after the date on which the Seller was notified of such documents defect; provided, that if such defect would cause the Mortgage Loan to be other than a “qualified mortgage” as defined in Section 860G(a)(3) of the Indenture TrusteeCode, promptly any such cure or repurchase must occur within 90 days from the date such breach was discovered, or cure such defect, or (ii) substitute a Qualified Substitute Mortgage Loan for the related Mortgage Loan upon receipt thereofthe same terms and conditions set forth in Section 3.1 hereof for substitutions. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1, other than with respect to servicing rights with respect to the Mortgage Loans. (c) The parties hereto intend that the transactions transaction set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute herein constitutes a sale by the Seller to the Purchaser of all the Seller's ’s right, title and interest in and to the Mortgage Loans (other than with respect to the related servicing rights) and other property as and to the extent described above. In the event the transactions transaction set forth herein are is deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's ’s right, title and interest in, to and under the Mortgage Loans (other than with respect to the related servicing rights) and such other property, to secure all of the Seller's ’s obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware California (which shall have been submitted for filing as of the Closing Date with respect to the aggregate Stated Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest perfect and protect the Purchaser’s interests in each Mortgage Loan and the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indentureproceeds thereof.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Accredited Mortgage Loan REIT Trust)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreementrecourse, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, : (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as (including the Cut-Off Date Principal Balances of the Closing Date, including the related Cut-off Date Principal BalanceMortgage Loans), all interest accruing thereon thereon, all monies due or to become due thereon, and all collections in respect thereof received on and or after the Cut-off Date, Off Date (other than principal and all collections of interest and principal due after thereon on or prior to the Cut-off Off Date, ); (ii) the Seller's interest of the Seller in any insurance policies related to in respect of the Mortgage Loans Loans; and (iii) all proceeds of the foregoing. Such conveyance shall be deemed to be made: with respect to the Cut-Off Date Principal Balances, as of the Closing Date, subject to the receipt by the Seller of consideration therefor as provided herein under clause (a) of Section 2.3. (b) In connection with such conveyances the conveyance by the SellerSeller of the Mortgage Loans, the Seller further agrees, at its own expense, on or prior to the Closing Date with respect to the Stated Principal Balances of the Mortgage Loans, to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement, and to deliver to the Purchaser true and complete lists of all of the Mortgage Loans specifying for each Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal Balance. Such lists, which form the Mortgage Loan Schedule, shall be marked as Exhibit 1 to this Agreement and are hereby incorporated into and made a part of this Agreement. (c) Except for Missing Documents identified in Exhibit 2 hereto, in connection with the conveyance by the Seller of the Mortgage Loans sold by it, the Seller shall, (A) with respect to each related Mortgage Loan, on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Companythe Custodian, as custodian for the Indenture Trustee, on or at least five (5) Business Days before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed or assigned without recourse to the order in blank (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of the Indenture Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Indenture Trustee or in blank Seller ) or, with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage Note; Lost Note Affidavit and (iiB) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office except as provided in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(bclause (A) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to the Mortgage Notes and except for Missing Documents identified in Exhibit 2 hereto, deliver the Mortgage Files to the Servicer. Within the time period for the review of each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as Note set forth in Section 2.01(b) 2.2 of the Sale and Servicing Custodial Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File Note is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if the Seller's failure to deliver any document required to be delivered to the Custodian on behalf of the Indenture Trustee has not been delivered (provided provided, that a Mortgage File Note will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if it is listed on Exhibit 2 hereto and the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraphdefect related thereto is a Missing Document), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a an Eligible Substitute Mortgage Loan for the related Mortgage Loan therefor upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans, provided that the Seller shall have the option to substitute an Eligible Substitute Mortgage Loan or Loans for such Mortgage Loan only if such substitution occurs within two years following the Closing Date. In connection with Notwithstanding anything contained herein, the assignment of Seller or Servicer shall not be required to repurchase any Mortgage Loan registered on due to the MERS® Systemfailure to deliver to the Custodian any Missing Documents. However, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System be required to indicate that repurchase any such Mortgage Loans Loan if: (i) foreclosure proceedings have been assigned commenced with respect to such Mortgage Loan and (ii) the failure to possess a Missing Document described under the definition of Mortgage File (I)(i), (ii), (iii), (iv), (vi) or (II) materially and adversely affects the Servicer's ability to foreclose on the related Mortgage Loan or to establish the full amount of principal and interest owing on the related Mortgage Note. Exhibit 2 hereto shall be delivered by the Seller to the Indenture Trustee in accordance with this Agreement for not later than 30 days from the benefit Closing Date. Upon sale of the Noteholders by including (or deletingMortgage Loans, the ownership of each Mortgage Note, each related Mortgage and the contents of the related Mortgage File shall be vested in the case Purchaser and the ownership of Mortgage Loans which are repurchased in accordance with the Sale all records and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph documents with respect to any the Mortgage Loans that are prepared by or that come into the possession of the Seller in its capacity as seller of the Mortgage Loans hereunder or by the Servicer in its capacity as servicer under the Servicing Agreement shall immediately vest in the Purchaser and shall be retained and maintained in trust by GMACM as the Servicer (except for the Mortgage Notes, which shall be delivered to and retained by the Custodian at the will of the Purchaser, in such custodial capacity only). The Seller's records will accurately reflect the sale of each Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded sold by it to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals of such documents to the Indenture Trustee, promptly upon receipt thereofPurchaser. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, property conveyed to it pursuant to this Section 2.1. (cd) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, herein constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the their respective Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under all accounts, chattel papers, general intangibles, payment intangibles, contract rights, certificates of deposit, deposit accounts, instruments, documents, letters of credit, money, advices of credit, investment property, goods and other property consisting of, arising under or related to the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall and hereby does constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto to the UCC-1 financing statements filed with respect to the Mortgage Loans by the Purchaser on the Closing Date, and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office or jurisdiction of incorporation of the Seller, as are necessary to ensure thatperfect and protect the Purchaser's and its assignees' interests in each Mortgage Loan and the proceeds thereof. The Servicer shall file any such continuation statements on a timely basis. (e) In connection with the assignment of any Mortgage Loan registered on the MERS(R) System, if the Seller further agrees that it will cause, at the Seller 's own expense, as soon as practicable after the Closing Date, the MERS(R) System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement were deemed to create a security interest or the Trust Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the specific code which identifies the Indenture Trustee as the assignee of such Mortgage Loan and (b) the series specific code in the field "Pool Field" which identifies the series of the Notes issued in connection with such Mortgage Loans, such security interest would be deemed . The Seller agrees that it will not alter the codes referenced in this paragraph with respect to be a perfected security interest of first priority under applicable law and will be maintained as such throughout any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the Indentureterms of this Agreement.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (GMACM Mortgage Loan Trust 2004-Gh1)

Sale of Mortgage Loans. (a) The Seller, by concurrently with the execution and delivery of this Agreement, does hereby sell, transfer, assign, set over, over and otherwise convey convey, to the Purchaser, without recourse but recourse, (subject to the terms of this Agreement, all of its right, title Sections 2.2 and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, 3.1) (i) all of its right, title and interest in the and to each Mortgage Loans identified on Exhibit 1 as of the Closing DateLoan, including the related Cut-off Off Date Principal Balance, Balance and all collections in respect of interest accruing thereon on and principal received after the Cut-off Date, and all collections Off Date (other than payments in respect of accrued interest and principal due after the Cut-off Dateon or before March 1, 2006); (ii) the Seller's property which secured such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies related to in respect of the Mortgage Loans and (iiiv) all proceeds of any of the foregoing. (b) In connection with such conveyances by the Sellertransfer, assignment and conveyance the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Companywith, as custodian for the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage LoanLoan (the “Related Documents”) and the related Mortgage Loan Schedule in computer readable format: (i) the The original Mortgage Note endorsed without recourse to the order of the Indenture Trustee or in blankNote, with all prior and intervening endorsements showing an unbroken a complete chain of endorsements from the original payee thereof originator of the Mortgage Loan to the Person so endorsing it the Mortgage Loan to the Indenture Trustee, endorsed by such Person “Pay to the order of HSBC Bank USA, National Association, as Indenture Trustee under the applicable agreement, without recourse” and signed, by facsimile or manual signature, in blank or, with respect to any the name of the Seller by a Responsible Officer; (ii) For each Mortgage Loan as to which that is not a MERS Mortgage Loan, any of: (1) the original Mortgage Note and related power of attorney, if any, with evidence of recording thereon, (2) (A) a copy of the Mortgage, if any, certified as a true copy of the original Mortgage by a Responsible Officer of the Seller by facsimile or manual signature or by the closing attorney or by an officer of the title insurer or agent of the title insurer that issued the related title insurance policy, in such case, if the original has been lost or destroyed transmitted for recording until such time as the original is returned by the public recording office and has not been replaced, a lost note affidavit together with (B) a copy of the related Mortgage Note; power of attorney, if any, or (ii3) a copy of the original recorded Mortgage andand a copy of the related power of attorney, if any, certified by the related public recording office. For each Mortgage Loan that is a MOM MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN of the related Mortgage Loan and either language indicating that such the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment thereof to MERS, with evidence of recording indicated thereon, or a copy of the Mortgage certified by the public recording office in which such Mortgage has been recorded; (iii) For each Mortgage Loan, the original Assignment of Mortgage in recordable form, from the Seller in blank, or to “HSBC Bank USA, National Association, as Indenture Trustee under the applicable agreement”; (iv) The original lender’s title insurance policy or a true copy thereof or, if such original lender’s title insurance policy has been lost, a copy thereof certified by the appropriate title insurer to be true and complete or, if such lender’s title insurance policy has not been issued as of the Closing Date, a marked up commitment (binder) to issue such policy; (v) For each Mortgage Loan that was not a MERS Mortgage Loan at its origination, all intervening assignments, if any, showing a complete chain of assignments from the originator to the Seller, including any recorded warehousing assignments, with evidence of recording thereon, oror a copy thereof certified by a Responsible Officer of the Seller by facsimile or manual signature, or by the closing attorney or by an officer of the title insurer or agent of the title insurer that issued the related title insurance policy, as a true copy of the original of such intervening assignments if the original Mortgage has not yet been transmitted for recording until such time as the original is returned from by the public recording office, office or a copy of the original Mortgage recorded intervening assignments certified by the Seller or the public recording office in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if anyoffice; (vi) the original or a copy Originals of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insuranceall assumption, written assurance, substitution and modification agreements, if any; and (vii) In the case of a Cooperative Loan, the originals of the following documents or instruments: 1. The Cooperative Shares, together with a stock power in blank; 2. The executed Security Agreement; 3. The executed Proprietary Lease; 4. The executed Recognition Agreement; 5. The executed assignment of Recognition Agreement; 6. The executed UCC-1 financing statements with evidence of recording thereon which have been filed in all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document places required to be delivered perfect the Seller’s interest in the Cooperative Shares and the Proprietary Lease; and 7. Executed UCC-3 financing statements or other appropriate UCC financing statements required by state law, evidencing a complete and unbroken line from the mortgagee to the Indenture Trustee has not been delivered with evidence of recording thereon (provided that or in a Mortgage File will not be deemed to contain a defect form suitable for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraphrecordation), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In addition, in connection with the assignment of any MERS Mortgage Loan registered on the MERS® SystemLoan, the Seller further agrees that it will cause, at the Seller's own ’s expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders Noteholders, by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing this Agreement) in such computer files (a) the code in information required by the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies MERS® System to identify the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Servicer or the Master Servicer to, to alter the codes information referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraphAgreement. In instances where, for a Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage is not delivered as provided above, and in instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with assignments called for by clause (iiv) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreementabove are unavailable, the Seller will deliver or cause to be delivered the originals original recorded Mortgage and intervening assignments to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee promptly upon receipt thereof but in no event later than one year after the Closing Date. The Seller hereby confirms to the Purchaser that it has caused the portions of the Electronic Ledger relating to the Mortgage Loans to be clearly and unambiguously marked, and has made the appropriate entries in its general accounting records, to indicate that such documents Mortgage Loans have been transferred to the Indenture Trustee, promptly upon receipt thereof. The Purchaser hereby acknowledges its acceptance as designee of all rightthe Purchaser, title and interest to constitute part of the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1Trust in accordance with the terms of the trust created hereunder. (c) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute herein be a sale by the Seller to the Purchaser of all the Seller's ’s right, title and interest in and to the Mortgage Loans and other property as described above and the sale by the Purchaser to the Trust of all the Purchaser’s right, title and interest in and to the extent Mortgage Loans and other property described above. In the event the transactions either transaction set forth herein are is deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser, and the Purchaser hereby grants to the Indenture Trustee, a security interest in all of the Seller's its respective right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, property described above; and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees and the Purchaser shall, to the extent consistent with this Agreement, take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the IndentureAgreement. Except as may otherwise expressly be provided herein, neither the Seller nor the Purchaser shall assign, sell, dispose of or transfer any interest in the Trust or any portion thereof, or permit the Trust or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. In the event that the parties hereto have failed to transfer the entire legal ownership in and to each Mortgage Loan to the Trust, the parties hereto intend that this document operate to transfer the entire equitable ownership interest in and to each Mortgage Loan to the Trust. (d) Except with respect to any MERS Mortgage Loan, within thirty (30) days of the Closing Date, the Seller, at its own expense, shall prepare and send for recording the Assignments of Mortgage in favor of the Indenture Trustee, in the appropriate real property or other records. With respect to any Assignment of Mortgage as to which the related recording information is unavailable within thirty (30) days following the Closing Date, such Assignment of Mortgage shall be submitted for recording within thirty (30) days after receipt of such information but in no event later than one year after the Closing Date. The Indenture Trustee or the Custodian on behalf of the Indenture Trustee shall be required to retain a copy of each Assignment of Mortgage submitted for recording. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Seller shall promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Seller shall be required to submit each such Assignment of Mortgage for recording. Any failure of the Seller to comply with this Section 2.1(d) shall result in the obligation of the Seller to purchase or substitute for the related Mortgage Loans pursuant to the provisions of Section 2.2. (e) [Reserved]. (f) If the Seller is given notice that a Mortgage File is defective or incomplete and if the Seller does not correct or cure such omission or defect within the 90-day period specified in this Section 2.1(f), the Seller shall purchase such Mortgage Loan from the Trust on the Determination Date in the month following the month in which such 90-day period expired at the Purchase Price of such Mortgage Loan. At any time the Seller exercises its option to repurchase any Mortgage Loan pursuant to Section 3.1, the Seller shall notify the Purchaser, the Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee of any such repurchase no later than five Business Days prior to the Determination Date of the month in which it wishes to repurchase such Mortgage Loans and the Seller shall repurchase such Mortgage Loan from the Trust on such Determination Date. The Purchase Price for any purchased or repurchased Mortgage Loan shall be delivered to the Servicer for deposit in the Collection Account no later than the applicable Determination Date; and, upon receipt by the Indenture Trustee or the Custodian on behalf of the Indenture Trustee of written notification of such deposit signed by a Responsible Officer of the Seller, the Indenture Trustee or the Custodian on behalf of the Indenture Trustee shall, in accordance with Section 3.07 of the Servicing Agreement, release to the Seller the related Mortgage File and the Indenture Trustee or the Custodian shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in the Seller or its designee any Mortgage Loan released pursuant hereto. It is understood and agreed that the obligation of the Seller to purchase any Mortgage Loan as to which a material defect in or omission of a constituent document exists shall constitute the sole remedy against the Seller respecting such defect or omission available to the Servicer (in its role as such), the Master Servicer, the Noteholders, the Securities Administrator or the Indenture Trustee on behalf of Noteholders. If pursuant to the foregoing provisions the Seller repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Seller shall cause the Servicer, at the Seller’s expense, to either (i) cause MERS to execute and deliver an Assignment of Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations or (ii) cause MERS to designate on the MERS® System the Seller as the beneficial holder of such Mortgage Loan. The Seller, promptly following the transfer of (i) a Mortgage Loan from or (ii) an Eligible Substitute Mortgage Loan to the Trust pursuant to this Section 2.1 or Section 3.1, as the case may be, shall amend the Mortgage Loan Schedule, appropriately mxxx the Electronic Ledger and make appropriate entries in its general account records to reflect such transfer and the addition of any Eligible Substitute Mortgage Loan, if applicable.

Appears in 1 contract

Samples: Mortgage Loan Sale and Contribution Agreement (Renaissance Home Equity Loan Trust 2006-1, Home Equity Loan Asset-Backed Notes, Series 2006-1)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, other than the servicing rights with respect thereto, (ii) the Seller's ’s interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with any transfer pursuant to this Section 2.1, the Seller agrees (i) to cause the books and records of the Seller to indicate that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement and (ii) to deliver to the Purchaser the Mortgage Loan Schedule which is attached as Exhibit 1 to this Agreement, and to the Pooling and Servicing Agreement, as which is incorporated by reference herein. (c) In connection with such conveyances by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed without recourse (including all riders thereto) bearing all intervening endorsements necessary to the order of the Indenture Trustee or in blank, and showing an unbroken show a complete chain of endorsements from the original payee thereof payee, endorsed “Pay to the Person endorsing it to order of _____without recourse”, via original signature, and, if previously endorsed, signed in the Indenture Trustee or in blank name of the last endorsee by a duly qualified officer of the last endorsee or, with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a lost note affidavit together Lost Note Affidavit with indemnity. If the Mortgage Loan was acquired by the last endorsee in a copy merger, the endorsement must be by “[name of last endorsee], successor by merger to [name of the related predecessor].” If the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, the endorsement must be by “[name of last endorsee], formerly known as [previous name].” Within 45 days after the Closing Date, the Seller shall endorse or cause to be endorsed the Mortgage Note in the name of “HSBC Bank USA, National Association, as trustee under the Pooling and Servicing Agreement relating to Opteum Mortgage Acceptance Corporation, Asset-Backed Pass-Through Certificates, Series 2005-4” for each Mortgage Note; (ii) the The original Mortgage and, if the related Mortgage Loan is a MOM Loanrecorded Mortgage, noting the presence of the MIN of the Mortgage Loan and language indicating that such the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated thereon, or, ; provided that if the original Mortgage has such document is not yet been returned from the public recording office, included because of a copy of the original Mortgage certified delay by the Seller or the public recording office in which where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if such original Mortgage has been recordedlost, or, if the original Security Instrument, assignments to the Indenture Trustee Seller shall include or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required cause to be included thereona copy thereof certified by the appropriate recording office, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable formif available; (iii) unless the Mortgage Loan is a MOM Loanregistered on the MERS® System, a certified copy an original duly executed Assignment of the assignment (which may be Mortgage in recordable form from the form of a blanket assignment if permitted in Seller or the jurisdiction in which the Mortgaged Property is located) originator, as applicable, to “Deutsche HSBC Bank USA, National Trust CompanyAssociation, as Indenture Trustee”trustee under the Pooling and Servicing Agreement relating to Opteum Mortgage Acceptance Corporation, Asset-Backed Pass-Through Certificates, Series 2005-4” for each Mortgage Note; (iv) The original intervening Assignments, if any and if available, with evidence of recording with respect thereon, showing an unbroken chain of title to each the Mortgage from the originator thereof to Person assigning it to the Trustee (or to MERS, if the Mortgage Loan in is registered on the name MERS® System and noting the presence of a MIN); provided that if such document is not included because of a delay by the Indenture Trustee thereon (public recording office where such document has been delivered for recordation or if (A) such office as a matter of policy does not return the original Security Instrumentof such document, assignments to the Indenture Trustee Seller shall include or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required cause to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification certified by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable; (v) The originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and (vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy or certificate of primary mortgage guaranty insurancethe insurance to be delivered promptly following the receipt thereof; The Seller need not cause to be recorded any Assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the extent availableTrustee and the Rating Agencies, if any; the recordation of such Assignment is not necessary to protect the Trustee’s interest in the related Mortgage Loan; provided, however, notwithstanding the delivery of any Opinion of Counsel, each Assignment shall be submitted for recording by the Seller, at no expense to the Trust or the Trustee, upon the earliest to occur of: (vii) reasonable direction by the Holders of Certificates evidencing at least 25% of the Voting Rights, (ii) the original occurrence of a Event of Default under the Pooling and Servicing Agreement, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 of the Pooling and Servicing Agreement and (v) if the Seller is not the Master Servicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Upon receipt of written notice from the Trustee that recording of the Assignments is required pursuant to one or more of the conditions set forth in the preceding sentence, the Seller shall be required to deliver such Assignments for recording as provided above, promptly and in any event within 30 days following receipt of such notice. The Seller shall furnish the Trustee, or its designated agent, with a copy of each Assignment submitted for recording. In the policy event that any such Assignment is lost or returned unrecorded because of title insurance a defect therein, the Seller shall promptly have a substitute Assignment prepared or mortgagee’s certificate have such defect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. To the extent an Assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, Assignments for states which are not covered by the Opinion of title insurance Counsel in the prior paragraph), the Seller at its own expense shall complete and submit it for recording in the appropriate public office for real property records, with such Assignment completed in favor of the Trustee. While such Assignment to be recorded is being recorded, the Trustee shall retain a photocopy of such Assignment. If any Assignment is lost or commitment returned unrecorded to the Trustee because of any defect therein, the Seller is required to prepare a substitute Assignment or binder for title insurance; and (vii) originals cure such defect, as the case may be, and the Seller shall cause such substitute Assignment to be recorded in accordance with this paragraph. Notwithstanding anything to the contrary contained in this Section 2.1, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Trustee of all modification agreementsa copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Trustee because of any defect therein, if applicable the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and availablethe Seller shall cause such Assignment to be recorded in accordance with this Section 2.1. If a material defect in any Mortgage File is discovered which may materially and adversely affect affects the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment Assignment under clause (c) (iii) above if the Seller has submitted such assignment Assignment for recording pursuant to the terms of the second following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after the date on which the Seller was notified of such defect; provided, that if such defect would cause the Mortgage Loan to be other than a “qualified mortgage” as defined in Section 860G(a)(3) of the Code, any such cure or repurchase must occur within 90 days from the date such breach was discovered, or cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or (ii) substitute a Qualified Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches substitutions. The Seller shall exercise its best reasonable efforts to deliver or cause to be delivered to the Custodian on behalf of representations and warranties as the Trustee within 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.1. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's ’s own expense, within 30 days after as of the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes Certificates issued in connection with such Mortgage Loans. The Seller and the Purchaser further agrees agree that it they will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals of such documents to the Indenture Trustee, promptly upon receipt thereof. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1, other than with respect to servicing rights with respect to the Mortgage Loans. In addition to the foregoing, on the Closing Date the Seller assigns to the Purchaser all of its right, title and interest in the Servicing Agreements. (cd) The parties hereto intend that the transactions transaction set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute herein constitutes a sale by the Seller to the Purchaser of all the Seller's ’s right, title and interest in and to the Mortgage Loans (other than with respect to the related servicing rights) and other property as and to the extent described above. In the event the transactions transaction set forth herein are is deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in (i) all of the Seller's ’s right, title and interest in, to and under the Mortgage Loans (other than with respect to the related servicing rights), (ii) all of Seller’s interest in any insurance policies and (iii) all proceeds of the foregoing and such other property, to secure all of the Seller's ’s obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the aggregate Stated Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest perfect and protect the Purchaser’s interests in each Mortgage Loan and the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indentureproceeds thereof.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Opteum Mortgage Acceptance Corp. Asset-Backed Pass-Through Certificates, Series 2005-4)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, over and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 Loans, as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, other than the servicing rights with respect thereto, (ii) the Seller's ’s interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with any transfer pursuant to this Section 2.1, the Seller agrees (i) to cause the books and records of the Seller to indicate that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement and (ii) to deliver to the Purchaser the Mortgage Loan Schedule, which is attached as Exhibit 1 to this Agreement, and to the Sale and Servicing Agreement, which is incorporated by reference herein. (c) In connection with such conveyances by the Seller, the Seller shall shall, on behalf of the Purchaser Purchaser, deliver to, to and deposit with Deutsche Bank Xxxxx Fargo Bank, National Trust CompanyAssociation, as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note Note, including any riders thereto, endorsed by the Seller or the originator, as applicable, without recourse recourse, to the order of “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture Trustee or in blankrelating to People’s Choice Home Loan Securities Trust Series 2005-3, and Mortgage-Backed Notes, Series 2005-3”, with any intervening endorsements showing an unbroken chain of endorsements title from the original payee thereof to the Person endorsing it originator to the Indenture Trustee Trustee, or in blank or, with respect to any a Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replacedlost, a lost note affidavit together with indemnity and, if available, a copy of the related lost Mortgage Note; (ii) the original recorded Mortgage, with evidence of recording indicated thereon; provided that if such document is not included because of a delay by the public recording office where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if such original Mortgage andhas been lost, the Seller shall include or cause to be included a copy thereof certified by the appropriate recording office, if the related Mortgage Loan is a MOM Loan, noting the presence available; (iii) an original duly executed Assignment of the MIN Mortgage in recordable form from the Seller or the originator, as applicable, to “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture relating to People’s Choice Home Loan Securities Trust Series 2005-3, Mortgage-Backed Notes, Series 2005-3”; (iv) the original intervening Assignments, if any and language indicating that such Mortgage Loan is a MOM Loanif available, with evidence of recording thereon, or, if showing an unbroken chain of title to the original Mortgage has not yet been returned from the public recording office, originator thereof to Person assigning it to the Indenture Trustee; provided that if such document is not included because of a copy of the original Mortgage certified delay by the Seller or the public recording office in which where such original Mortgage document has been recorded, or, if delivered for recordation or such office as a matter of policy does not return the original Security Instrumentof such document, assignments to the Indenture Trustee Seller shall include or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required cause to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification certified by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable; (v) the originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and (vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the policy preliminary title report, title binder or certificate of primary mortgage guaranty insurance, to title commitment on the extent available, if any; (vi) Mortgaged Property with the original or a copy policy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered promptly following the receipt thereof. The Seller need not cause to be recorded any assignment in any jurisdiction under the Indenture Trustee has not been laws of which, as evidenced by an Opinion of Counsel delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee and the Rating Agencies, the recordation of such assignment is not necessary to protect the Indenture Trustee’s interest in accordance with the related Mortgage Loan; provided, however, that notwithstanding the delivery of any Opinion of Counsel, each assignment shall be submitted for recording by the Seller, at no expense to the Trust or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes evidencing at least 25% of the Note Principal Balance, (ii) the occurrence of a Master Servicer Event of Default or Event of Default under the Indenture, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a master servicing transfer as described in Section 6.02 of this Agreement for and (v) the benefit occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Upon receipt of written notice from the Indenture Trustee that recording of the Noteholders by including (assignments is required pursuant to one or deleting, more of the conditions set forth in the case preceding sentence, the Seller shall be required to deliver such assignments for recording as provided above, promptly and in any event within 30 days following receipt of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loansnotice. The Seller further agrees shall furnish the Indenture Trustee, or its designated agent, with a copy of each assignment submitted for recording. In the event that it will notany such assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute assignment prepared or have such defect cured, as the case may be, and will thereafter cause each such assignment to be duly recorded. To the extent an assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, assignments for states that are not permit covered by the Master Servicer to, alter Opinion of Counsel in the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loanprior paragraph), the Seller, at its own expense, shall complete and submit it for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) aboverecords, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In Notwithstanding anything to the contrary contained in this Section 2.1, in those instances where an the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Indenture Trustee of a copy of such Mortgage, certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Indenture Trustee because of any original intervening assignment of Mortgage was notdefect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this section. If a defect in any Mortgage File is discovered which materially and adversely affects the value of the related Mortgage Loan, or the interests of the Noteholders or Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust, at the Purchase Price, within 90 days after the date on which the Seller was notified of such defect or (ii) cure such defect, or (iviii) above, delivered by substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for substitutions. The Seller shall exercise its best reasonable efforts to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered to the originals Custodian, on behalf of such documents to the Indenture Trustee, promptly upon receipt thereofwithin 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.1. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1, other than with respect to servicing rights with respect to the Mortgage Loans. (cd) The parties hereto intend that the transactions transaction set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute herein constitutes a sale by the Seller to the Purchaser of all the Seller's ’s right, title and interest in and to the Mortgage Loans (other than with respect to the related servicing rights) and other property as and to the extent described above. In the event the transactions transaction set forth herein are is deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's ’s right, title and interest in, to and under the Mortgage Loans (other than with respect to the related servicing rights) and such other property, to secure all of the Seller's ’s obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including including, without limitation limitation, the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the aggregate Stated Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest perfect and protect the Purchaser’s interests in each Mortgage Loan and the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indentureproceeds thereof.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Peoples Choice Home Loan Securities Trust Series 2005-3)

Sale of Mortgage Loans. (a) The SellerGMACM, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreementrecourse, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, : (i) all of its right, title and interest in the GMACM Mortgage Loans identified on Exhibit 1 as (including the Cut-Off Date Principal Balances of the Closing Date, including the related Cut-off Date Principal BalanceGMACM Mortgage Loans), all interest accruing thereon thereon, all monies due or to become due thereon, and all collections in respect thereof received on and or after the Cut-off Date, Off Date (other than principal and all collections of interest and principal due after thereon on or prior to the Cut-off Off Date, ); (ii) the Seller's interest of GMACM in any insurance policies related to in respect of the GMACM Mortgage Loans Loans; and (iii) all proceeds of the foregoing. Such conveyance shall be deemed to be made: with respect to the Cut-Off Date Principal Balances, as of the Closing Date, subject to the receipt by GMACM of consideration therefor as provided herein under clause (a) of Section 2.3. (b) Witmer, by the execution and delixxxx xf this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse, all of its right, title and interest in, to and under the following, and wherever located: (i) the Witmer Mortgage Loans (includinx xxx Cut-Off Date Principal Balances of Witmer Mortgage Loans), all interxxx xxcruing thereon, all monies due or to become due thereon, and all collections in respect thereof received on or after the Cut-Off Date (other than principal and interest due thereon on or prior to the Cut-Off Date); (ii) the interest of Witmer in any insurance policies xx xxspect of the Witmer Mortgage Loans; and (iii) xxx xxoceeds of the foregoing. Such conveyance shall be deemed to be made: with respect to the Cut-Off Date Principal Balances, as of the Closing Date, subject to the receipt by Witmer of consideration therefor xx xrovided herein under clause (a) of Section 2.3. (c) In connection with such conveyances the conveyance by GMACM of the SellerGMACM Mortgage Loans, GMACM further agrees, at its own expense, on or prior to the Seller Closing Date with respect to the Stated Principal Balances of the GMACM Mortgage Loans, to indicate in its books and records that the GMACM Mortgage Loans have been sold to the Purchaser pursuant to this Agreement, and to deliver to the Purchaser true and complete lists of all of the GMACM Mortgage Loans specifying for each GMACM Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal Balance. Such lists, which form part of the GMACM Mortgage Loan Schedule, shall be marked as Exhibit 1-A to this Agreement and are hereby incorporated into and made a part of this Agreement. (d) In connection with the conveyance by Witmer of the Witmer Mortgage Loxxx, Xitmer fuxxxxx agrees, at its own xxxxxxe, on or prior to the Closing Date with respect to the Stated Principal Balances of the Witmer Mortgage Loans, to indicxxx xx its books and records that the Witmer Mortgage Loans have been sxxx xx the Purchaser pursuant to this Agreement, and to deliver to the Purchaser true and complete lists of all of the Witmer Mortgage Loans specifying xxx xxch Witmer Mortgage Loan (i) its accoxxx xxmber and (ii) its Cut-Off Date Principal Balance. Such lists, which form part of the Witmer Mortgage Loan Schedule, shaxx xx marked as Exhibit 1-B to this Agreement and are hereby incorporated into and made a part of this Agreement. (e) Except for Missing Documents identified in Exhibit 2 hereto, in connection with the conveyance by GMACM of the GMACM Mortgage Loans sold by it and the conveyance by Witmer of the Witmer Mortgage Loaxx xxxd by it, XXXXX shall, (A) with respect to each related Mortgage Loan, on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Companythe Custodian, as custodian for the Indenture Trustee, on or at least five (5) Business Days before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note endorsed or assigned without recourse to the order of the Indenture Trustee or in blank, and showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Indenture Trustee or in blank (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of GMACM) or, with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage Note; Lost Note Affidavit and (iiB) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office except as provided in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(bclause (A) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to the Mortgage Notes and except for Missing Documents identified in Exhibit 2 hereto, deliver the Mortgage Files to the Servicer. Within the time period for the review of each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as Note set forth in Section 2.01(b) 2.2 of the Sale and Servicing Custodial Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File Note is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if the Seller's failure to deliver any document required to be delivered to the Custodian on behalf of the Indenture Trustee has not been delivered (provided provided, that a Mortgage File Note will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if it is listed on Exhibit 2 hereto and the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraphdefect related thereto is a Missing Document), the Seller GMACM shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a an Eligible Substitute Mortgage Loan for the related Mortgage Loan therefor upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans, provided that a Seller shall have the option to substitute an Eligible Substitute Mortgage Loan or Loans for such Mortgage Loan only if such substitution occurs within two years following the Closing Date. Notwithstanding anything contained herein, the related Seller or Servicer shall not be required to repurchase any Mortgage Loan due to the failure to deliver to the Custodian any Missing Documents. However, the Seller will be required to repurchase any such Mortgage Loan if: (i) foreclosure proceedings have been commenced with respect to such Mortgage Loan and (ii) the failure to possess a Missing Document described under the definition of Mortgage File (I)(i), (ii), (iii), (iv), (vi) or (II) materially and adversely affects the Servicer's ability to foreclose on the related Mortgage Loan or to establish the full amount of principal and interest owing on the related Mortgage Note. Exhibit 2 hereto shall be delivered by GMACM to the Indenture Trustee not later than 30 days from the Closing Date. Upon sale of the Mortgage Loans, the ownership of each Mortgage Note, each related Mortgage and the contents of the related Mortgage File shall be vested in the Purchaser and the ownership of all records and documents with respect to the Mortgage Loans that are prepared by or that come into the possession of either Seller as seller of the Mortgage Loans hereunder or by GMACM in its capacity as Servicer under the Servicing Agreement shall immediately vest in the Purchaser, and shall be promptly delivered to the Servicer in the case of the documents in possession of Witmer and retained and maintained in trust by GMACM as the Servicer (except for the Mortgage Notes, which shall be retained by the Custodian) at the will of the Purchaser, in such custodial capacity only. Each Seller's records will accurately reflect the sale of each Mortgage Loan sold by it to the Purchaser. (f) The parties hereto intend that the transactions set forth herein constitute a sale by the Sellers to the Purchaser of each of the Sellers' right, title and interest in and to their respective Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed not to be a sale, each Seller hereby grants to the Purchaser a security interest in all of such Seller's right, title and interest in, to and under all accounts, chattel papers, general intangibles, payment intangibles, contract rights, certificates of deposit, deposit accounts, instruments, documents, letters of credit, money, advices of credit, investment property, goods and other property consisting of, arising under or related to the Mortgage Loans and such other property, to secure all of such Seller's obligations hereunder, and this Agreement shall and hereby does constitute a security agreement under applicable law. Each Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of any continuation statements with respect to the UCC-1 financing statements filed with respect to the Mortgage Loans by the Purchaser on the Closing Date, and any amendments thereto required to reflect a change in the name or corporate structure of such Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office or jurisdiction of incorporation of such Seller, as are necessary to perfect and protect the Purchaser's and its assignees' interests in each Mortgage Loan and the proceeds thereof. The Servicer shall file any such continuation statements on a timely basis. (g) In connection with the assignment of any Mortgage Loan registered on the MERS® MERS(R) System, the Seller GMACM further agrees that it will cause, at the SellerGMACM's own expense, within 30 days as soon as practicable after the Closing Date, the MERS® MERS(R) System to indicate that such Mortgage Loans have been assigned by the Seller GMACM to the Indenture Trustee in accordance with this Agreement or the Trust Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing this Agreement) in such computer files (a) the code "[IDENTIFY INDENTURE TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE FIELD NAME FOR INDENTURE TRUSTEE]" which identifies the specific Indenture Trustee and (b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field" which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further GMACM agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) above, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was not, in accordance with clause (ii) or (iv) above, delivered by the Seller to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered the originals of such documents to the Indenture Trustee, promptly upon receipt thereof. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1. (c) The parties hereto intend that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute a sale by the Seller to the Purchaser of all the Seller's right, title and interest in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indenture.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Residential Asset Mortgage Prod Inc Gmacm Mor Ln Tr 2003-Gh1)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of the Seller’s right, title and interest in, to and under the Mortgage Loans, after giving effect to all payments due on the Mortgage Loans on or before the Cut-off Date, whether or not received including the right to any Prepayment Charges payable by the related Mortgagors in connection with any Principal Prepayments on the Mortgage Loans, whether now existing or hereafter acquired and wherever located, on the Closing Date and as of the Cut-off Date, as well as all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 as each of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, (ii) the Seller's interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoingCap Contracts. (b) In connection with such conveyances by the Seller, the Seller shall on behalf of the Purchaser deliver to, and deposit with Deutsche Bank National Trust Company, as custodian for to the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note Note, endorsed without recourse in blank or in the following form “Pay to the order of the Deutsche Bank National Trust Company, as Indenture Trustee or in blankunder the applicable agreement, without recourse,” with all prior and intervening endorsements showing an unbroken a complete chain of endorsements endorsement from the original payee thereof originator to the Person so endorsing it to the Indenture Trustee or in blank or, with respect to any Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replaced, a lost note affidavit together with a copy of the related Mortgage NoteTrustee; (ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, with evidence of recording thereon, orand the original recorded power of attorney, if the original Mortgage has not yet been returned from the public recording officewas executed pursuant to a power of attorney, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded, or, if the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (iii) an original Assignment in blank; (iv) the original recorded Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Indenture Trustee as contemplated by the immediately preceding clause (iii); (v) the original or a copy copies of the policy each assumption, modification, written assurance or certificate of primary mortgage guaranty insurance, to the extent availablesubstitution agreement, if any;; and (vi) the original or a copy of the policy of lender’s title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreementspolicy or, if applicable and availablethe original title policy has not been issued, the irrevocable commitment to issue the same. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, Loan including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller Responsible Party shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Purchase Price or substitute a Qualified Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with With respect to a maximum of approximately 2.0% of the assignment Mortgage Loans, by outstanding Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, if any original Mortgage Loan registered on the MERS® SystemNote referred to in Section 2.1(b)(i) above cannot be located, the obligations of the Seller further agrees that it will causeto deliver such documents shall be deemed to be satisfied upon delivery to the Purchaser of a photocopy of such Mortgage Note, at if available, with a lost note affidavit substantially in the Seller's own expenseform of Exhibit B hereto. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Purchaser is subsequently located, such original Mortgage Note shall be delivered to the Purchaser within 30 three Business Days. The Seller promptly shall (within sixty Business Days following the later of the Closing Date and the date of the receipt by the Seller of the recording information for a Mortgage but in no event later than ninety days after following the Closing Date) submit or cause to be submitted for recording, at no expense to the MERS® System to indicate that such Mortgage Loans have been assigned by Purchaser (or the Seller to Trust Estate or the Indenture Trustee in accordance with this Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller further agrees that it will not, and will not permit the Master Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of under the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loan), the Seller, at its own expense, shall complete and submit for recording in the appropriate public office for real property records records, each of the assignments Assignment referred to in clause clauses (iiib)(iii) aboveand (b)(iv) of this Section 2.1 and shall execute each original Assignment in the following form: “Deutsche Bank National Trust Company, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the as Indenture Trustee shall retain a photocopy of under the applicable agreement.” In the event that any such assignment. If any assignment Assignment is lost or returned unrecorded to the Indenture Trustee because of any a defect therein, the Seller is required to promptly shall prepare a substitute assignment Assignment or cure such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Notes; provided, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Purchaser, upon the earliest to occur of: (i) reasonable direction by Holders of Notes entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master Servicer Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Master Servicer, (iv) the occurrence of a servicing transfer as described in Section 6.02 of the Servicing Agreement, (v) with respect to any one Assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage and (vi) any Mortgage Loan that is 90 days or more delinquent. Upon (a) receipt of written notice that recording of the Assignments is required pursuant to one or more of the conditions (excluding condition (vi) above) set forth in the preceding sentence or (b) upon the occurrence of condition (vi) in the preceding sentence, the Seller shall cause be required to deliver such substitute assignment Assignments within 30 days following receipt of such notice. If any of the documents referred to be recorded in accordance with this paragraph. In instances where an original Mortgage or any original intervening assignment of Mortgage was notSections 2.1(b)(ii), in accordance with clause (iiiii) or (iv) aboveabove has, delivered as of the Closing Date, been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Purchaser or its assignee, transferee or designee of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Purchaser or its assignee, transferee or designee promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. Notice shall be provided to the Indenture Trustee and the Rating Agencies by the Seller if delivery pursuant to clause (2) above will be made more than 180 days after the Indenture Trustee, prior Closing Date. If the original lender’s title insurance policy was not delivered pursuant to or concurrently with the execution and delivery of this AgreementSection 2.1(b)(vi) above, the Seller will shall deliver or cause to be delivered the originals of such documents to the Indenture TrusteePurchaser or its assignee, transferee or designee promptly after receipt thereof, the original lender’s title insurance policy. The Seller shall deliver or cause to be delivered to the Purchaser or its assignee, transferee or designee promptly upon receipt thereofthereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Purchaser hereby acknowledges its acceptance of all right, title and interest Each original document relating to a Mortgage Loan which is not delivered to the Mortgage Loans and other propertyPurchaser or its assignee, now existing and hereafter createdtransferee or designee, conveyed to it pursuant to this Section 2.1if held by the Seller, shall be so held for the benefit of the Purchaser, its assignee, transferee or designee. (c) The parties hereto intend (other than for federal, state and local tax purposes) that the transactions set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute a sale by the Seller to the Purchaser of all the Seller's ’s right, title and interest in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's ’s right, title and interest in, to and under the Mortgage Loans and such other property, to secure all of the Seller's ’s obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of all necessary UCC-1 financing statements filed in the State of Delaware California (which shall have been submitted for filing as of the Closing Date with respect to the Stated Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest perfect and protect the Purchaser’s interests in each Mortgage Loan and the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indentureproceeds thereof.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (New Century Home Equity Loan Trust 2006-S1)

Sale of Mortgage Loans. (a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, over and otherwise convey to the Purchaser, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the following, whether now existing or hereafter acquired and wherever located, (i) all of its right, title and interest in the Mortgage Loans identified on Exhibit 1 Loans, as of the Closing Date, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date, and all collections of interest and principal due after the Cut-off Date, other than the servicing rights with respect thereto, (ii) the Seller's ’s interest in any insurance policies related to the Mortgage Loans and (iii) all proceeds of the foregoing. (b) In connection with any transfer pursuant to this Section 2.1, the Seller agrees (i) to cause the books and records of the Seller to indicate that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement and (ii) to deliver to the Purchaser the Mortgage Loan Schedule, which is attached as Exhibit I to this Agreement, and to the Sale and Servicing Agreement, which is incorporated by reference herein. (c) In connection with such conveyances by the Seller, the Seller shall shall, on behalf of the Purchaser Purchaser, deliver to, to and deposit with Deutsche Bank Xxxxx Fargo Bank, National Trust CompanyAssociation, as custodian for the Indenture Trustee, on or before the Closing Date, the following documents or instruments with respect to each Mortgage Loan: (i) the original Mortgage Note Note, including any riders thereto, endorsed by the Seller or the originator, as applicable, without recourse recourse, to the order of “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture Trustee or in blankrelating to People’s Choice Home Loan Securities Trust Series 2005-4, and Mortgage-Backed Notes, Series 2005-4”, with any intervening endorsements showing an unbroken chain of endorsements title from the original payee thereof to the Person endorsing it originator to the Indenture Trustee Trustee, or in blank or, with respect to any a Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replacedlost, a lost note affidavit together with indemnity and, if available, a copy of the related lost Mortgage Note; (ii) the original recorded Mortgage, with evidence of recording indicated thereon; provided that if such document is not included because of a delay by the public recording office where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if such original Mortgage andhas been lost, the Seller shall include or cause to be included a copy thereof certified by the appropriate recording office, if the related Mortgage Loan is a MOM Loan, noting the presence available; (iii) an original duly executed Assignment of the MIN Mortgage in recordable form from the Seller or the originator, as applicable, to “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture relating to People’s Choice Home Loan Securities Trust Series 2005-4, Mortgage-Backed Notes, Series 2005-4”; (iv) the original intervening Assignments, if any and language indicating that such Mortgage Loan is a MOM Loanif available, with evidence of recording thereon, or, if showing an unbroken chain of title to the original Mortgage has not yet been returned from the public recording office, originator thereof to Person assigning it to the Indenture Trustee; provided that if such document is not included because of a copy of the original Mortgage certified delay by the Seller or the public recording office in which where such original Mortgage document has been recorded, or, if delivered for recordation or such office as a matter of policy does not return the original Security Instrumentof such document, assignments to the Indenture Trustee Seller shall include or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required cause to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their recording as specified in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form; (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) to “Deutsche Bank National Trust Company, as Indenture Trustee”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if (A) the original Security Instrument, assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to the Security Instrument required to be included thereon, be delivered to recording offices for recording and have not been returned to the Seller in time to permit their delivery as specified in Section 2.01(b) of the Sale and Servicing Agreement, the Seller may deliver a true copy thereof with a certification certified by the Seller, on the face of such copy, substantially as follows: “Certified to be a true and correct copy of the original, which has been transmitted for recording” or (B) the related Mortgaged Property is located in a state other than Maryland and an Opinion of Counsel has been provided as set forth in Section 2.01(b) of the Sale and Servicing Agreement, shall be in recordable form); (iv) all intervening assignments of the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable; (v) the originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and (vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the policy preliminary title report, title binder or certificate of primary mortgage guaranty insurance, to title commitment on the extent available, if any; (vi) Mortgaged Property with the original or a copy policy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available. If a material defect in any Mortgage File is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders or the Certificateholders in such Mortgage Loan, including if any document required to be delivered promptly following the receipt thereof. The Seller need not cause to be recorded any assignment in any jurisdiction under the Indenture Trustee has not been laws of which, as evidenced by an Opinion of Counsel delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the second following paragraph), the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller's own expense, within 30 days after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Indenture Trustee and the Rating Agencies, the recordation of such assignment is not necessary to protect the Indenture Trustee’s interest in accordance with this Agreement the related Mortgage Loan; provided, however, that notwithstanding the delivery of any Opinion of Counsel, each assignment shall be submitted for recording by the benefit Seller, at no expense to the Trust or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes evidencing at least 25% of the Noteholders by including Note Principal Balance, (ii) the occurrence of a Master Servicer Event of Default or deletingEvent of Default under the Indenture, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a master servicing transfer and (v) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Upon receipt of written notice from the Indenture Trustee that recording of the assignments is required pursuant to one or more of the conditions set forth in the case preceding sentence, the Seller shall be required to deliver such assignments for recording as provided above, promptly and in any event within 30 days following receipt of Mortgage Loans which are repurchased in accordance with the Sale and Servicing Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loansnotice. The Seller further agrees shall furnish the Indenture Trustee, or its designated agent, with a copy of each assignment submitted for recording. In the event that it will notany such assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute assignment prepared or have such defect cured, as the case may be, and will thereafter cause each such assignment to be duly recorded. To the extent an assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, assignments for states that are not permit covered by the Master Servicer to, alter Opinion of Counsel in the codes referenced in this paragraph with respect to any Mortgage Loan during the term of the Indenture, unless and until such Mortgage Loan is repurchased in accordance with the terms of the Indenture. Promptly after the Closing Date (or after the date of transfer of any Substitute Mortgage Loanprior paragraph), the Seller, at its own expense, shall complete and submit it for recording in the appropriate public office for real property records each of the assignments referred to in clause (iii) aboverecords, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. In Notwithstanding anything to the contrary contained in this Section 2.1, in those instances where an the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Indenture Trustee of a copy of such Mortgage, certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Indenture Trustee because of any original intervening assignment of Mortgage was notdefect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this section. If a defect in any Mortgage File is discovered which materially and adversely affects the value of the related Mortgage Loan, or the interests of the Noteholders or Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust, at the Purchase Price, within 90 days after the date on which the Seller was notified of such defect or (ii) cure such defect, or (iviii) above, delivered by substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 3.1 hereof for substitutions. The Seller shall exercise its best reasonable efforts to the Indenture Trustee, prior to or concurrently with the execution and delivery of this Agreement, the Seller will deliver or cause to be delivered to the originals Custodian, on behalf of such documents to the Indenture Trustee, promptly upon receipt thereofwithin 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.1. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.1, other than with respect to servicing rights with respect to the Mortgage Loans. (cd) The parties hereto intend that the transactions transaction set forth herein, including the sale of the Mortgage Loans pursuant to this Agreement, constitute herein constitutes a sale by the Seller to the Purchaser of all the Seller's ’s right, title and interest in and to the Mortgage Loans (other than with respect to the related servicing rights) and other property as and to the extent described above. In the event the transactions transaction set forth herein are is deemed by a court of competent jurisdiction not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller's ’s right, title and interest in, to and under the Mortgage Loans (other than with respect to the related servicing rights) and such other property, to secure all of the Seller's ’s obligations hereunder, and this Agreement shall constitute a security agreement under applicable law, including, without limitation, Article 9 of the applicable Uniform Commercial Code. The Seller agrees to take or cause to be taken such actions and to execute such documents, including including, without limitation limitation, the filing of all necessary UCC-1 financing statements filed in the State of Delaware (which shall have been submitted for filing as of the Closing Date with respect to the aggregate Stated Principal Balance of the Mortgage Loans), any continuation statements with respect thereto and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Seller, as are necessary to ensure that, if this Agreement were deemed to create a security interest perfect and protect the Purchaser’s interests in each Mortgage Loan and the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Indentureproceeds thereof.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Peoples Choice Home Loan Securities Trust Series 2005-4)