Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below and pursuant to the terms of each Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s delivery, on behalf of the Trust, on the related Subsequent Transfer Date to or upon the order of the Seller of the purchase price therefor, the Seller shall on any Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the Trust, all right, title and interest of the Seller, in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) the related Scheduled Principal Balance as of the Subsequent Cut-Off Date after giving effect to payments of principal due on or before the Subsequent Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (v) all proceeds of any of the foregoing. The transfer by the Seller to the Trust of the Subsequent Mortgage Loans set forth on the Subsequent Mortgage Loan Schedule shall be absolute and shall be intended by the Seller and all parties hereto, other than for federal income tax purposes, to be treated as a sale by the Seller to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Mortgage Loans and the other property specified in this Section 2.04 from the Seller to the Trust pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Seller intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller shall be deemed to have granted and does hereby grant to the Trust as of such Subsequent Transfer Date a first priority security interest in the entire right, title and interest of the Seller in and to the Subsequent Mortgage Loans and all other property conveyed to the Trust pursuant to this Section 2.04 and all proceeds thereof and (ii) this Agreement shall constitute a security agreement under applicable law. The purchase price shall be one hundred percent (100%) of the Scheduled Principal Balances of the Subsequent Mortgage Loans as of the Subsequent Cut-Off Date. On or before each Subsequent Transfer Date, the Seller shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage Loans. (b) The Seller shall transfer and deliver to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee the Subsequent Mortgage Loans and the other property and rights related thereto described in paragraph (a) of this Section 2.04 only upon the satisfaction of each of the following conditions on or prior to the applicable Subsequent Transfer Date: (i) The Seller shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Rating Agencies with an Addition Notice, which notice shall be given not less than two Business Days prior to the applicable Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Trust and the aggregate Scheduled Principal Balance of such Mortgage Loans and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date that the inclusion of such Subsequent Mortgage Loans will not result in the downgrade or withdrawal of the ratings assigned to the Notes; (ii) The Seller shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit I; (iii) The Seller shall have delivered to the Trust Administrator for deposit in the Collection Account all principal collected and interest collected to the extent accrued and due after the Subsequent Cut-off Date; (iv) As of each Subsequent Transfer Date, the Seller was not insolvent, the Seller will not be made insolvent by such transfer and the Seller is not aware of any pending insolvency; (v) Such addition will not result in a material adverse tax consequence to any Noteholder; (vi) The Pre-Funding Period shall not have terminated; (vii) The Seller shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the Seller to the Trust, the enforceability of the Subsequent Transfer Agreement with respect to the Seller, which matters may be covered in the opinions delivered on the Closing Date; (viii) The Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies with an Opinion of Counsel to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status of the Notes; (ix) The aggregate Scheduled Principal Balance of Subsequent Mortgage Loans does not exceed the amount on deposit in the Pre-Funding Account as of the Closing Date; (x) The conditions specified in Exhibit J hereto shall be met; and (xi) On the last Subsequent Transfer Date, the Indenture Trustee and the Trust Administrator shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy the parameters set forth in Exhibit J hereto. (c) Each party hereto shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b), 3.02 and 3.03 with respect to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage Loans.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Fieldstone Mortgage Investment Trust, Series 2004-3)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below and pursuant to the terms of each Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s delivery, on behalf of the Trust, on the related Subsequent Transfer Date to or upon the order of the Seller of the purchase price therefor, (i) the Seller shall on any Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the Depositor and (ii) the Depositor shall sell, transfer, assign, set over and otherwise convey without recourse to the Trust, all right, title and interest of the SellerSeller and the Depositor, as applicable, in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) the related Scheduled Stated Principal Balance as of the Subsequent Cut-Off Date after giving effect to payments of principal due on or before the Subsequent Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (v) all proceeds of any of the foregoing. The transfer transfers by the Seller to the Depositor and by the Depositor to the Trust of the Subsequent Mortgage Loans set forth on the Subsequent Mortgage Loan Schedule attached thereto shall be absolute and shall be intended by the Seller Seller, the Depositor and all parties hereto, other than for federal income tax purposes, to be treated as a sale by the Seller to the Trust. The parties hereto intend that for federal income tax purposes Depositor and as a sale by the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Mortgage Loans and the other property specified in this Section 2.04 from the Seller Depositor to the Trust pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Seller intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller shall be deemed to have granted and does hereby grant to the Trust as of such Subsequent Transfer Date a first priority security interest in the entire right, title and interest of the Seller in and to the Subsequent Mortgage Loans and all other property conveyed to the Trust pursuant to this Section 2.04 and all proceeds thereof and (ii) this Agreement shall constitute a security agreement under applicable lawTrust. The purchase price shall be one hundred percent Percent (100%) of the Scheduled aggregate Stated Principal Balances Balance of the Subsequent Mortgage Loans as of the Subsequent Cut-Off Date. This provision constitutes a fixed price contract within the meaning of Section 860G(a)(3) of the Code. On or before each Subsequent Transfer Date, the Seller shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage Loans.
(b) The Seller shall transfer and deliver to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee the Subsequent Mortgage Loans and the other property and rights related thereto described in paragraph (a) of this Section 2.04 only upon the satisfaction of each of the following conditions on or prior to the applicable Subsequent Transfer Date:
(i) The Seller shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Servicer and the Rating Agencies with an Addition Notice, which notice shall be given not less than two Business Days prior to the applicable Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Trust and the aggregate Scheduled Stated Principal Balance of such Mortgage Loans and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, Servicer and the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date that the inclusion of such Subsequent Mortgage Loans will not result in the downgrade or withdrawal of the ratings assigned to the Notes;
(ii) The Seller shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Servicer and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit ID;
(iii) The Seller shall have delivered to the Trust Administrator for deposit in the Collection Account all principal collected and interest collected to the extent accrued and due after the Subsequent Cut-off Date;
(iv) As of each Subsequent Transfer Date, the Seller was not insolvent, the Seller will not be made insolvent by such transfer and the Seller is not aware of any pending insolvency;
(v) Such addition will not result in a material adverse tax consequence to any Noteholder;
(vi) The Pre-Funding Period shall not have terminated;
(vii) The Seller Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor Administrator and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the Seller Depositor to the Trust, the enforceability of the Subsequent Transfer Agreement with respect to the Seller, which matters may be covered in the opinions delivered on the Closing Date;
(viii) The Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies with an Opinion of Counsel to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status of the Notes, which matters may be covered in the opinions delivered on the Closing Date;
(ixviii) The aggregate Scheduled Stated Principal Balance of Subsequent Mortgage Loans does not exceed the amount on deposit deposited in the Pre-Funding Account as of the Closing Date;
(xix) The conditions specified in Exhibit J hereto shall be met; and;
(xix) On the last Subsequent Transfer Date, the Indenture Trustee and the Trust Administrator shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy the parameters set forth in Exhibit J hereto; and
(xi) The Issuer shall have provided the Trustee, the Trust Administrator, the Depositor, the Rating Agencies, the Seller and the Underwriters with an Opinion of Counsel relating to general corporate matters, in a form reasonably satisfactory to the addressees thereto.
(c) Each party hereto shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b)3.01, 3.02 and 3.03 with respect to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage Loans.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (SunTrust Mortgage Securitization, LLC)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below and pursuant to the terms of each Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s delivery, on behalf of the Trust, on the related Subsequent Transfer Date to or upon the order of the Seller of the purchase price therefor, (i) the Seller or the Transferor (if applicable) shall on any Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the Depositor and (ii) the Depositor shall sell, transfer, assign, set over and otherwise convey without recourse to the Trust, all right, title and interest of the SellerSeller or the Transferor (if applicable) and the Depositor, as applicable, in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) the related Scheduled Stated Principal Balance as of the Subsequent Cut-Off Date after giving effect to payments of principal due on or before the Subsequent Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (v) all proceeds of any of the foregoing. The transfer transfers by the Seller or the Transferor (if applicable) to the Depositor and by the Depositor to the Trust of the Subsequent Mortgage Loans set forth on the Subsequent Mortgage Loan Schedule attached thereto shall be absolute and shall be intended by the Seller or the Transferor (if applicable), the Depositor and all parties hereto, other than for federal income tax purposes, to be treated as a sale by the Seller or the Transferor (if applicable) to the Depositor and as a sale by the Depositor to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Mortgage Loans and the other property specified in this Section 2.04 from the Seller or the Transferor (if applicable) to the Depositor and by the Depositor to the Trust pursuant to this Agreement and each Subsequent Transfer Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, each of the Seller intends or the Transferor (if applicable) and the Depositor intend that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller or the Transferor (if applicable) shall be deemed to have granted and does hereby grant to the Depositor and the Depositor shall be deemed to have granted and does hereby grant to the Trust as of such Subsequent Transfer Date a first priority security interest in the entire right, title and interest of the Seller or the Transferor (if applicable) and of the Depositor in and to the Subsequent Mortgage Loans and all other property conveyed to the Trust pursuant to this Section 2.04 and all proceeds thereof and (ii) this Agreement shall constitute a security agreement under applicable law. The purchase price shall be one hundred percent Percent (100%) of the Scheduled aggregate Stated Principal Balances Balance of the Subsequent Mortgage Loans as of the Subsequent Cut-Off Date. On or before each Subsequent Transfer Date, the Seller or the Transferor (if applicable) shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage Loans.
(b) The Seller or the Transferor (if applicable) shall transfer and deliver to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee the Subsequent Mortgage Loans and the other property and rights related thereto described in paragraph (a) of this Section 2.04 only upon the satisfaction of each of the following conditions on or prior to the applicable Subsequent Transfer Date:
(i) The Seller or the Transferor (if applicable) shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Rating Agencies with an Addition Notice, which notice shall be given not less than two Business Days prior to the applicable Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Trust and the aggregate Scheduled Stated Principal Balance of such Mortgage Loans and the Rating Agencies shall have informed the Seller, the Transferor (if applicable), the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date that the inclusion of such Subsequent Mortgage Loans will not result in the downgrade or withdrawal of the ratings assigned to the Notes;
(ii) The Seller or the Transferor (if applicable) shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit I;
(iii) The Seller or the Transferor (if applicable) shall have delivered to the Trust Administrator for deposit in the Collection Account all principal collected and interest collected to the extent accrued and due after the Subsequent Cut-off Date;
(iv) As of each Subsequent Transfer Date, the Seller or the Transferor (if applicable) was not insolvent, the Seller or the Transferor (if applicable) will not be made insolvent by such transfer and the Seller or the Transferor (if applicable) is not aware of any pending insolvency;
(v) Such addition will not result in a material adverse tax consequence to any Noteholder;
(vi) The Pre-Funding Period shall not have terminated;
(vii) The Seller or the Transferor (if applicable) shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the Seller or the Transferor (if applicable) to the Trust, Depositor and the enforceability of the Subsequent Transfer Agreement with respect to the SellerSeller and the Depositor, which matters may be covered in the opinions delivered on the Closing Date;
(viii) The Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor Administrator and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the Depositor to the Trust, the enforceability of the Subsequent Transfer Agreement with respect to the Depositor and to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status of the Notes, which matters may be covered in the opinions delivered on the Closing Date;
(ix) The aggregate Scheduled Stated Principal Balance of Subsequent Mortgage Loans does not exceed the amount on deposit deposited in the Pre-Funding Account as of the Closing Date;
(x) The conditions specified in Exhibit J hereto shall be met; and
(xi) On the last Subsequent Transfer Date, the Indenture Trustee and the Trust Administrator shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy the parameters set forth in Exhibit J hereto.
(c) Each party hereto shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b)3.01, 3.02 and 3.03 with respect to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage Loans.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Fieldstone Mortgage Investment CORP)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below and pursuant to the terms of each Subsequent Transfer Agreement, in consideration of the Indenture Trust AdministratorTrustee’s delivery, on behalf of the Trust, on the related Subsequent Transfer Date to or upon the order of the Seller of the purchase price therefor, the Seller shall on any Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the Trust, (i) all right, title and interest of the Seller, Seller in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) the related Scheduled Principal Balance as of the Subsequent Cut-Off Date Principal Balance and all interest accruing thereon after giving effect to payments of principal due on or before the related Due Date in the calendar month preceding the Subsequent Cut-Off Date; (ii) Transfer Date and all collections in respect of interest and principal received after the Subsequent related Cut-Off Date (other than principal and payments in respect of accrued interest due on or before such Subsequent Cut-off Mortgage Loans through the related Due Date in the calendar month preceding the Subsequent Transfer Date); (iiiii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iviii) its interest in any insurance policies in respect of such Subsequent Mortgage LoanLoans; and (viv) all proceeds of any of the foregoing. The transfer by the Seller to the Trust of the Subsequent Mortgage Loans set forth on in the Subsequent Mortgage Loan Schedule Transfer Agreement shall be absolute and shall be intended by the Seller and all parties hereto, other than for federal income tax purposes, hereto to be treated as a sale by the Seller to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Subsequent Mortgage Loans and the other property specified in this Section 2.04 2.14 from the Seller to the Trust pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Seller intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller shall be deemed to have granted and does hereby grant to the Trust as of such Subsequent Transfer Date a first priority security interest in the entire right, title and interest of the Seller in and to the Subsequent Mortgage Loans and all other property conveyed to the Trust pursuant to this Section 2.04 2.14 and all proceeds thereof and (ii) this Agreement shall constitute a security agreement under applicable law. The purchase price shall be one hundred percent (100%) of the Scheduled Cut-Off Date Principal Balances of the Subsequent Mortgage Loans as of the Subsequent Cut-Off DateLoans. On or before each Subsequent Transfer Date, the Seller shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents Related Documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage Loans.
(b) The Seller shall transfer and deliver to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee Trust the Subsequent Mortgage Loans and the other property and rights related thereto described in paragraph (a) of this Section 2.04 2.14 only upon the satisfaction of each of the following conditions on or prior to the applicable Subsequent Transfer Date:
(i) The Seller shall have provided the Depositor, the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Certificate Insurer and the Rating Agencies with an Addition Notice, which notice shall be given not less than two Business Days prior to the applicable Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Trust and the aggregate Scheduled Aggregate Principal Balance of such Mortgage Loans and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer Certificate Insurer or the Subservicer Trustee prior to the applicable Subsequent Transfer Date in writing that the inclusion of such Subsequent Mortgage Loans will not result in the downgrade or withdrawal of the ratings assigned to the NotesClass A Certificates (without taking the Certificate Insurance Policy into account);
(ii) The Seller shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Trustee and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit IP;
(iii) The Seller shall have delivered to the Trust Administrator Servicer for deposit in the Collection Account all principal collected and interest collected to the extent accrued and due after the related Due Date in the calendar month preceding the month of the Subsequent Cut-off Transfer Date;
(iv) As of each Subsequent Transfer Date, the Seller was not insolvent, the Seller will not be made insolvent by such transfer and the Seller is not aware of any pending insolvency;
(v) Such addition will not result in a material adverse tax consequence to any Noteholder;
(vi) The Pre-Funding Period shall not have terminated;
(viivi) The Seller shall have provided the Indenture Trustee, the Trust Administrator, the Depositor Certificate Insurer and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the Seller to the TrustTrustee, the enforceability of the Subsequent Transfer Agreement with respect and to the Sellereffect that the transfer of such Subsequent Mortgage Loans will not adversely affect the status of any REMIC as a REMIC or result in a material adverse tax consequence to any REMIC or the Holders of Certificates, which matters may be covered in the opinions delivered on the Closing Date;
(viiivii) The Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies with an Opinion of Counsel to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status of the Notes;
(ix) The aggregate Scheduled Aggregate Principal Balance of Subsequent Mortgage Loans does not exceed the amount on deposit in the Original Pre-Funding Account as of the Closing Date;
(x) The conditions specified in Exhibit J hereto shall be metFunded Amount; and
(xiviii) On the last Subsequent Transfer Date, the Indenture Trustee and the Trust Administrator shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), ) satisfy the parameters set forth in Exhibit J Q hereto.
(c) Each party hereto The Seller and the Trustee shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b), 3.02 and 3.03 2.04 with respect to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage LoansLoans including such representations made under Sections 2.04(iii), 2.04(vi), 2.04(xlvii) and 2.04(xlix). Except as specifically provided in the immediately preceding sentence each Subsequent Mortgage Loan complies with each representation and warranty in Section 2.04(a) as of the related Cut-Off Date (or such other date specified).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Lehman Home Equity Loan Trust 2004-3)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in Article II hereof and paragraph (b) below and pursuant to the terms of each the related Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s delivery, Trustee's delivery on behalf of the Trust, on the related each Subsequent Transfer Date to or upon the order of the Seller applicable Seller(s) of all or a portion of the purchase price thereforbalance of funds in the Pre-Funding Account, the Seller applicable Seller(s) shall on any such Subsequent Transfer Date irrevocably sell, transfer, grant, bargain, assign, set over and otherwise convey without recourse to the TrustTrustee for the benefit of the Certificateholders, without recourse, all of the Seller(s)' right, title and interest of the Seller, in and to each related Subsequent Mortgage Loan transferred pursuant listed in the mortgage loan schedule attached as an exhibit to such the related Subsequent Transfer Agreement, Agreement including (i) the related Scheduled Principal Balance as of the Subsequent Cut-Off Date Principal Balance and all interest payments due after giving effect to payments of principal due on or before the Subsequent related Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) any real property which that secured such Subsequent Mortgage Loan and which that has been acquired by foreclosure or deed in lieu of foreclosure; (iviii) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (viv) all proceeds of any the foregoing to the Trustee for the benefit of the foregoingCertificateholders. The transfer by the Seller Seller(s) to the Trust Trustee, for the benefit of the Certificateholders, of the Subsequent Mortgage Loans set forth on in the mortgage loan schedule attached as an exhibit to the related Subsequent Mortgage Loan Schedule Transfer Agreement shall be absolute and shall be intended by the Seller and all parties hereto, other than for federal income tax purposes, hereto to be treated as a sale by the Seller to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Mortgage Loans and the other property specified in this Section 2.04 from the Seller Seller(s) to the Trust pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Seller intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller shall be deemed to have granted and does hereby grant to the Trust as of such Subsequent Transfer Date a first priority security interest in the entire right, title and interest of the Seller in and to the Subsequent Mortgage Loans and all other property conveyed to the Trust pursuant to this Section 2.04 and all proceeds thereof and (ii) this Agreement shall constitute a security agreement Fund under applicable law, however, for financial reporting purposes the Seller(s) intend to treat any such transaction as the incurrence of debt by the applicable Seller(s). The purchase price amount released from the Pre-Funding Account shall be one hundred percent (100%) of the Scheduled aggregate of the applicable Cut-Off Date Principal Balances of the Subsequent Mortgage Loans as of the Subsequent Cut-Off Date. so transferred.
(b) On or before each Subsequent Transfer Date, the Seller Trustee shall deliver to, and deposit with withdraw from the Indenture Trustee or the Custodian on behalf Pre-Funding Account funds in an amount equal to one hundred percent (100%) of the Indenture Trustee, aggregate of the related documents with respect applicable Cut-Off Date Principal Balances of the Subsequent Loans so transferred to each Subsequent Mortgage Loan transferred the Trust Fund on such Subsequent Transfer Date, Date and the related Subsequent Mortgage Loan Schedule in computer readable format with respect shall use such cash to purchase such Subsequent Mortgage Loans.
(b) The Seller shall transfer and deliver to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee the Subsequent Mortgage Loans and , along with the other property and rights related thereto described in paragraph (a) of this Section 2.04 above only upon the satisfaction of each of the following conditions on or prior to the applicable such Subsequent Transfer Date:
(i) The Seller the Seller(s) shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Trustee and the Rating Agencies with an Addition Notice, which notice shall be given not less than two five Business Days prior to the applicable such Subsequent Transfer Date and shall designate (a) the Subsequent Mortgage Loans to be sold to the Trust and Trust, (b) the aggregate Scheduled Cut-Off Date Principal Balance of such Mortgage Subsequent Loans, (c) the amount required to be remitted to the Trustee pursuant to Section 2.09(b)(ii) with respect to such Subsequent Loans and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date that the inclusion of (d) whether such Subsequent Mortgage Loans will not result in the downgrade Loan is a Group I Subsequent Loan, Group II-A Subsequent Loan or withdrawal of the ratings assigned to the NotesGroup II-B Subsequent Loan;
(ii) The Seller the Seller(s) shall have delivered remitted to the Indenture Trustee, Trustee for deposit in the Depositor, Certificate Account all principal and interest payments due and collected after the Trust Administrator, the Master Servicer, the Subservicer and the Servicer a duly executed applicable Cut-Off Date or due after such Cut-Off Date but collected before such Cut-Off Date in respect of each Subsequent Transfer Agreement in substantially the form of Exhibit ILoan;
(iii) The Seller the Seller(s) shall have delivered an Officer's Certificate to the Trust Administrator for deposit in the Collection Account all principal collected and interest collected to the extent accrued and due after the Subsequent Cut-off Date;
(iv) As Trustee confirming that, as of each Subsequent Transfer Date, the Seller was Seller(s) were not insolvent, the Seller will not nor would they be made insolvent by such transfer and the Seller is not transfer, nor were they aware of any pending insolvency;
(iv) the Funding Period shall not have ended;
(v) Such addition will not result the Seller(s) shall have delivered to the Trustee an Officer's Certificate confirming the satisfaction of each condition precedent specified in a material adverse tax consequence to any Noteholderthis paragraph (b) and in the related Subsequent Transfer Agreement;
(vi) The Pre-Funding Period the Seller(s) shall not have terminateddelivered an Officer's Certificate to the Trustee confirming that the representations and warranties of the Seller(s) pursuant to Section 2.03 hereof (other than to the extent such representations and warranties relate to statistical information as to the characteristics of the Initial Loans) are true and correct with respect to the Seller(s) and the Subsequent Loans, as applicable, as of the Subsequent Transfer Date;
(vii) The Seller the Seller(s) shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the Seller to the Trust, the enforceability of the Subsequent Transfer Agreement with respect to the Seller, which matters may be covered in the opinions delivered on the Closing Date;
(viii) The Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies Trustee with an Opinion of Counsel to the effect that the transfer conveyance of such the Subsequent Mortgage Loans conveyed on the Subsequent Transfer Date:
(A) will not adversely affect (1) result in the imposition of the tax status on "prohibited transactions" on the Trust Fund or contributions after the Startup Date, as defined in Sections 860F(a)(2) and 860G(d) of the NotesCode, respectively, or (2) cause the Trust Fund to fail to qualify as a REMIC at any time that any Certificates are outstanding; and
(B) will be characterized as a true sale and not as a loan secured by the Subsequent Loans;
(viii) in connection with the transfer and assignment of the Subsequent Loans, the Seller(s) shall satisfy the document delivery requirements set forth in Section 2.01(a) and (c) hereof;
(ix) The aggregate Scheduled Principal Balance the Seller(s) shall have delivered an Officer's Certificate to the Trustee confirming that the conveyance of the Subsequent Mortgage Loans does not exceed the amount on deposit in the Pre-Funding Account as of the Closing DateSubsequent Transfer Date will not result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Offered Certificates;
(x) The conditions specified in Exhibit J hereto the Seller(s) shall be met; andhave delivered an Officer's Certificate to the Trustee confirming that the Rating Agencies shall have consented to the conveyance of the Subsequent Loans to the Trust Fund;
(xi) On the last Seller(s) shall have delivered an Officer's Certificate to the Trustee confirming that following delivery of the Subsequent Transfer DateLoans to the Trust Fund, the Indenture Trustee and the Trust Administrator shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy if any) and the parameters set forth in Exhibit J hereto.Subsequent Loans shall have the following characteristics (calculated as of the applicable Cut-Off Date):
(cA) Each party hereto not more than 0.50% of the Loans were 30-59 days contractually past due (assuming 30 day months);
(B) the weighted average Loan-to-Value Ratio of the Loans shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b), 3.02 and 3.03 with respect to not exceed 87.00%;
(C) the Subsequent weighted average FICO score of the Loans shall not be less than 631;
(D) the weighted average Mortgage Rate of the Loans delivered on each Subsequent Transfer Date. References in such Sections to shall not be less than 7.25%;
(E) the Initial Mortgage weighted average margin of the Group II Loans or Mortgage shall not be less than 6.60%;
(F) not more than 1.60% of the Loans shall be deemed to refer Mixed Use Loans;
(G) not less than 80.00% of the Loans will have prepayment penalties;
(H) not less than 97.00% of the Loans shall be secured by a first mortgage on the related Mortgaged Property;
(I) not less than 84.00% of the Loans shall have been originated pursuant to the Subsequent Mortgage Sellers' full documentation program;
(J) not less than 80.00% of the Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to classified as "Grade A Credits" under the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after Sellers' loan underwriting standards;
(K) not more than 15.00% of the Closing Date Loans shall remain unchanged as have borrowers located in the same state; (L) not more than 4.00% of the Loans shall representations made with specific reference to the Initial Mortgage be Balloon Loans.;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Equity One Mortgage Pass-Through Trust 2004-1)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below this Article II and pursuant to the terms of each the related Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s Trustee's delivery, on behalf of the TrustGrantor Trustee, on the related each Subsequent Transfer Date to or upon the order of the Seller Transferor, of all or a portion of the purchase price thereforbalance of funds in the Pre-Funding Account, the Seller Transferor shall on any such Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the TrustGrantor Trustee, all of its right, title and interest of the Seller, in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) listed on the related Scheduled Principal Balance as of the Subsequent Cut-Off Date after giving effect to payments of principal due on or before the Subsequent Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (v) all proceeds of any of the foregoingSchedule. The transfer by the Seller Transferor to the Trust Grantor Trustee of the Subsequent Mortgage Loans set forth on in the related Subsequent Mortgage Loan Schedule Transfer Agreement shall be absolute and shall be intended by the Seller and all parties hereto, other than for federal income tax purposes, hereto to be treated as a sale by the Seller Transferor to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase AgreementGrantor Trustee. If the assignment and transfer of the Mortgage Subsequent Loans and the other property specified in this Section 2.04 2.07
(a) from the Seller Transferor to the Trust Grantor Trustee pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Seller Transferor intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller Transferor shall be deemed to have granted and does hereby grant to the Trust Grantor Trustee as of such each Subsequent Transfer Date a perfected, first priority security interest in the entire right, title and interest of the Seller Transferor in and to the related Subsequent Mortgage Loans and all other property conveyed to the Trust Grantor Trustee pursuant to this Section 2.04 2.07(a) and all proceeds thereof thereof, and (ii) this Agreement shall constitute a security agreement under applicable law. The purchase price amount released to the Transferor from the Pre-Funding Account shall be one hundred percent (100%) of the Scheduled aggregate Principal Balances of the Subsequent Mortgage Loans as of the Subsequent related Cut-Off Date. On or before each Subsequent Transfer Date, the Seller shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage LoansDate so transferred.
(b) The Seller shall transfer and deliver to the Indenture Trustee or the Custodian Trustee, on behalf of the Indenture Grantor Trustee and as provided in Section 5.05 of the Sale and Servicing Agreement, shall contribute from the Pre-Funding Account funds in an amount equal to one hundred percent (100%) of the aggregate Principal Balances of the Subsequent Mortgage Loans as of the related Cut-Off Date so transferred to the Grantor Trustee and use such cash to purchase the Subsequent Loans on behalf of the Grantor Trustee, along with the other property and rights related thereto described in paragraph (a) of this Section 2.04 above only upon the satisfaction of each of the following conditions on or prior to the applicable related Subsequent Transfer Date:
(i) The Seller the Transferor shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Grantor Trustee and the Rating Agencies with an Addition Notice, which notice shall be given not less no fewer than two Business Days prior to the applicable related Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Trust Grantor Trustee and the aggregate Scheduled Principal Balance Balances of such Mortgage Subsequent Loans as of the related Cut-Off Date and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date provided written confirmation that the inclusion purchase of such Subsequent Mortgage Loans will not result in the downgrade a downgrade, withdrawal or withdrawal qualification of the ratings assigned to then in effect for the Outstanding Notes;
(ii) The Seller the Transferor shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit I;
(iii) The Seller shall have delivered to the Trust Administrator for deposit deposited in the Collection Account all principal collected after the related Cut-Off Date and interest payments collected to the extent accrued and due after the related Cut-Off Date in respect of each Subsequent Loan and the related Subsequent Cut-off DateOff Date Deposit;
(iviii) As the Transferor shall have delivered an Officer's Certificate to the Indenture Trustee confirming that, as of each Subsequent Transfer Date, the Seller Transferor was not insolvent, the Seller will would not be made insolvent by such transfer and the Seller is was not aware of any pending insolvency;
(viv) Such addition will not result in a material adverse tax consequence to any Noteholder;
(vi) The the Pre-Funding Period shall not have terminatedended;
(v) the Transferor shall have delivered to the Indenture Trustee an Officer's Certificate confirming the satisfaction of each condition precedent specified in this paragraph (b) and in the related Subsequent Transfer Agreement;
(vi) the Transferor shall have delivered an Officer's Certificate to the Indenture Trustee confirming that the representations and warranties of the Transferor pursuant to Section 3.04 of the Sale and Servicing Agreement (other than to the extent representations and warranties relate to statistical information as to the characteristics of the Initial Loans in the aggregate) and pursuant to Section 3.02 of the Sale and Servicing Agreement are true and correct with respect to the Subsequent Loans and Transferor, as applicable, as of the Subsequent Transfer Date;
(vii) The Seller the Grantor Trustee shall not purchase a Subsequent Loan unless (A) the Rating Agencies shall consent thereto (which consent shall not be unreasonably withheld and shall be evidenced by a letter from the Rating Agencies) and (B) the following conditions shall have provided been satisfied: (I) no Subsequent Loans may be 30 or more days contractually delinquent as of the Indenture applicable Cut-Off Date; (II) the lien securing any such Subsequent Loan must not be lower than third priority; (III) such Subsequent Loan must have an outstanding Principal Balance of at least $2,500 as of the applicable Cut-Off Date; (IV) the first payment on such Subsequent Loan must be due no later than the last day of the Due Period immediately succeeding the Due Period in which it is transferred, unless the Transferor deposits into the Collection Account 30 days' interest on such Subsequent Loan at the Home Loan Interest Rate less the applicable Servicing Fee rate (each such amount, a "Capitalized Interest Subsequent Deposit"), in which event the first payment on such Subsequent Loan must be due no later than the last day of the second Due Period following the Due Period in which the transfer occurs; (V) such Subsequent Loan is a fully amortizing loan with level payments over the remaining term of no fewer than 10 years and no more than 25 years and the scheduled maturity will be no later than April 2023; (VI) such Subsequent Loan must have a Home Loan Interest Rate of at least 9.99%; (VII) any such Subsequent Loan must have an original Combined Loan-to-Value Ratio of no more than 125%, (VIII) such Subsequent Loan must be underwritten, re-underwritten or reviewed, as applicable, in accordance with the underwriting guidelines of the Transferor in effect at such time or in a manner similar to the Initial Loans, and (IX) following the purchase of such Subsequent Loans by the Grantor Trustee, the Trust Administrator, Home Loans included in the Depositor Pool must have a weighted average interest rate and the Rating Agencies with an Opinion a weighted average remaining term to maturity as of Counsel relating each respective Cut-Off Date comparable to the sale (i.e., “True Sale Opinion”) those of the Subsequent Mortgage Initial Loans from the Seller to the Trust, the enforceability of the Subsequent Transfer Agreement with respect to the Seller, which matters may be covered included in the opinions delivered on the Closing Dateinitial Pool;
(viii) The Depositor shall have provided in connection with the Indenture Trusteetransfer and assignment of the Subsequent Loans, the Trust Administrator, Transferor shall satisfy the Depositor and the Rating Agencies with an Opinion of Counsel to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status of the Notes;document delivery requirements set forth in Section 2.05 hereof; and
(ix) The aggregate Scheduled Principal Balance each proposed Subsequent Loan must be listed on the Home Loan Schedule hereto as the same may be amended from time to time with the approval of the Depositor.
(c) In connection with each Subsequent Mortgage Loans does not exceed Transfer Date and on the related Payment Date, the Indenture Trustee shall determine (i) the amount on deposit and correct dispositions of the Capitalized Interest Requirement and Pre-Funding Account Earnings for such Payment Date in accordance with the provisions of the Sale and Servicing Agreement and (ii) any other necessary matters in connection with the administration of the Pre-Funding Account and the Capitalized Interest Account. In the event that any amounts are released as a result of calculation error by the Closing Date;
(x) The conditions specified in Exhibit J hereto shall be met; and
(xi) On Indenture Trustee from the last Subsequent Transfer DatePre-Funding Account or from the Capitalized Interest Account, the Indenture Trustee shall not be liable therefor and the Trust Administrator Transferor shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy the parameters set forth in Exhibit J hereto.
(c) Each party hereto shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b), 3.02 and 3.03 with respect immediately repay such amounts to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage LoansIndenture Trustee.
Appears in 1 contract
Samples: Grantor Trust Agreement (Empire Funding Home Loan Owner Trust 1997-5)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below and pursuant to the terms of each Subsequent Transfer Agreement, in consideration of the Indenture Trust AdministratorTrustee’s delivery, on behalf of the Trust, on the related Subsequent Transfer Date to or upon the order of the Seller of the purchase price therefor, the Seller shall on any Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the Trust, (i) all right, title and interest of the Seller, Seller in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) the related Scheduled Principal Balance as of the Subsequent Cut-Off Date Principal Balance and all interest accruing thereon after giving effect to payments of principal due on or before the related Due Date in the calendar month preceding the Subsequent Cut-Off Date; (ii) Transfer Date and all collections in respect of interest and principal received after the Subsequent related Cut-Off Date (other than principal and payments in respect of accrued interest due on or before such Subsequent Cut-off Mortgage Loans through the related Due Date in the calendar month preceding the Subsequent Transfer Date); (iiiii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iviii) its interest in any insurance policies in respect of such Subsequent Mortgage LoanLoans; and (viv) all proceeds of any of the foregoing. The transfer by the Seller to the Trust of the Subsequent Mortgage Loans set forth on in the Subsequent Mortgage Loan Schedule Transfer Agreement shall be absolute and shall be intended by the Seller and all parties hereto, other than for federal income tax purposes, hereto to be treated as a sale by the Seller to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Subsequent Mortgage Loans and the other property specified in this Section 2.04 2.14 from the Seller to the Trust pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Seller intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller shall be deemed to have granted and does hereby grant to the Trust as of such Subsequent Transfer Date a first priority security interest in the entire right, title and interest of the Seller in and to the Subsequent Mortgage Loans and all other property conveyed to the Trust pursuant to this Section 2.04 2.14 and all proceeds thereof and (ii) this Agreement shall constitute a security agreement under applicable law. The purchase price shall be one hundred percent (100%) of the Scheduled Cut-Off Date Principal Balances of the Subsequent Mortgage Loans as of the Subsequent Cut-Off DateLoans. On or before each Subsequent Transfer Date, the Seller shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents Related Documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage Loans.
(b) The Seller shall transfer and deliver to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee Trust the Subsequent Mortgage Loans and the other property and rights related thereto described in paragraph (a) of this Section 2.04 2.14 only upon the satisfaction of each of the following conditions on or prior to the applicable Subsequent Transfer Date:
(i) The Seller shall have provided the Depositor, the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Certificate Insurer and the Rating Agencies with an Addition Notice, which notice shall be given not less than two Business Days prior to the applicable Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Trust and the aggregate Scheduled Aggregate Principal Balance of such Mortgage Loans and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer Certificate Insurer or the Subservicer Trustee prior to the applicable Subsequent Transfer Date in writing that the inclusion of such Subsequent Mortgage Loans will not result in the downgrade or withdrawal of the ratings assigned to the NotesClass A Certificates (without taking the Certificate Insurance Policy into account);
(ii) The Seller shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Trustee and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit IP;
(iii) The Seller shall have delivered to the Trust Administrator Servicer for deposit in the Collection Account all principal collected and interest collected to the extent accrued and due after the related Due Date in the calendar month preceding the month of the Subsequent Cut-off Transfer Date;
(iv) As of each Subsequent Transfer Date, the Seller was not insolvent, the Seller will not be made insolvent by such transfer and the Seller is not aware of any pending insolvency;
(v) Such addition will not result in a material adverse tax consequence to any Noteholder;
(vi) The Pre-Funding Period shall not have terminated;
(viivi) The Seller shall have provided the Indenture Trustee, the Trust Administrator, the Depositor Certificate Insurer and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the Seller to the TrustTrustee, the enforceability of the Subsequent Transfer Agreement with respect and to the Sellereffect that the transfer of such Subsequent Mortgage Loans will not adversely affect the status of any REMIC created hereunder as a REMIC or result in a material adverse tax consequence to any REMIC created hereunder or the Holders of Certificates, which matters may be covered in the opinions delivered on the Closing Date;
(viiivii) The Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies with an Opinion of Counsel to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status of the Notes;
(ix) The aggregate Scheduled Aggregate Principal Balance of Subsequent Mortgage Loans does not exceed the amount on deposit in the Original Pre-Funding Account as of the Closing Date;
(x) The conditions specified in Exhibit J hereto shall be metFunded Amount; and
(xiviii) On the last Subsequent Transfer Date, the Indenture Trustee and the Trust Administrator shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), ) satisfy the parameters set forth in Exhibit J Q hereto.
(c) Each party hereto The Seller and the Trustee shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b), 3.02 and 3.03 2.04 with respect to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage LoansLoans including such representations made under Sections 2.04(iii), 2.04(vi), 2.04(xlvii) and 2.04(xlix). Except as specifically provided in the immediately preceding sentence each Subsequent Mortgage Loan complies with each representation and warranty in Section 2.04(a) as of the related Cut-Off Date (or such other date specified).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Home Loan Mortgage Loan Trust 2005-1)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in Article II hereof and paragraph (b) below and pursuant to the terms of each the related Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s delivery, Trustee's delivery on behalf of the Trust, on the related each Subsequent Transfer Date to or upon the order of the Seller applicable Seller(s) of all or a portion of the purchase price thereforbalance of funds in the Pre-Funding Account, the Seller applicable Seller(s) shall on any such Subsequent Transfer Date irrevocably sell, transfer, grant, bargain, assign, set over and otherwise convey without recourse to the TrustTrustee for the benefit of the Certificateholders, without recourse, all of the Seller(s)' right, title and interest of the Seller, in and to each related Subsequent Mortgage Loan transferred pursuant listed in the mortgage loan schedule attached as an exhibit to such the related Subsequent Transfer Agreement, Agreement including (i) the related Scheduled Principal Balance as of the Subsequent Cut-Off Date Principal Balance and all interest payments due after giving effect to payments of principal due on or before the Subsequent related Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) any real property which that secured such Subsequent Mortgage Loan and which that has been acquired by foreclosure or deed in lieu of foreclosure; (iviii) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (viv) all proceeds of any the foregoing to the Trustee for the benefit of the foregoingCertificateholders. The transfer by the Seller Seller(s) to the Trust Trustee, for the benefit of the Certificateholders, of the Subsequent Mortgage Loans set forth on in the mortgage loan schedule attached as an exhibit to the related Subsequent Mortgage Loan Schedule Transfer Agreement shall be absolute and shall be intended by the Seller and all parties hereto, other than for federal income tax purposes, hereto to be treated as a sale by the Seller to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Mortgage Loans and the other property specified in this Section 2.04 from the Seller Seller(s) to the Trust pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security Fund for a loan, the Seller intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller shall be deemed to have granted and does hereby grant to the Trust as of such Subsequent Transfer Date a first priority security interest in the entire right, title and interest of the Seller in and to the Subsequent Mortgage Loans and all other property conveyed to the Trust pursuant to this Section 2.04 and all proceeds thereof and (ii) this Agreement shall constitute a security agreement under applicable lawpurposes. The purchase price amount released from the Pre-Funding Account shall be one hundred percent (100%) of the Scheduled aggregate of the applicable Cut-Off Date Principal Balances of the Subsequent Mortgage Loans as of the Subsequent Cut-Off Date. so transferred.
(b) On or before each Subsequent Transfer Date, the Seller Trustee shall deliver to, and deposit with withdraw from the Indenture Trustee or the Custodian on behalf Pre-Funding Account funds in an amount equal to one hundred percent (100%) of the Indenture Trustee, aggregate of the related documents with respect applicable Cut-Off Date Principal Balances of the Subsequent Loans so transferred to each Subsequent Mortgage Loan transferred the Trust Fund on such Subsequent Transfer Date, Date and the related Subsequent Mortgage Loan Schedule in computer readable format with respect shall use such cash to purchase such Subsequent Mortgage Loans.
(b) The Seller shall transfer and deliver to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee the Subsequent Mortgage Loans and , along with the other property and rights related thereto described in paragraph (a) of this Section 2.04 above only upon the satisfaction of each of the following conditions on or prior to the applicable such Subsequent Transfer Date:
(i) The Seller the Seller(s) shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Trustee and the Rating Agencies with an Addition Notice, which notice shall be given not less than two five Business Days prior to the applicable such Subsequent Transfer Date and shall designate (a) the Subsequent Mortgage Loans to be sold to the Trust and Trust, (b) the aggregate Scheduled Cut-Off Date Principal Balance of such Mortgage Subsequent Loans, (c) the amount required to be remitted to the Trustee pursuant to Section 2.09(b)(ii) with respect to such Subsequent Loans and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date that the inclusion of (d) whether such Subsequent Mortgage Loans will not result in the downgrade Loan is a Group I Subsequent Loan, Group II-A Subsequent Loan or withdrawal of the ratings assigned to the NotesGroup II-B Subsequent Loan;
(ii) The Seller the Seller(s) shall have delivered remitted to the Indenture Trustee, Trustee for deposit in the Depositor, Certificate Account all principal and interest payments due and collected after the Trust Administrator, the Master Servicer, the Subservicer and the Servicer a duly executed applicable Cut-Off Date or due after such Cut-Off Date but collected before such Cut-Off Date in respect of each Subsequent Transfer Agreement in substantially the form of Exhibit ILoan;
(iii) The Seller the Seller(s) shall have delivered an Officer's Certificate to the Trust Administrator for deposit in the Collection Account all principal collected and interest collected to the extent accrued and due after the Subsequent Cut-off Date;
(iv) As Trustee confirming that, as of each Subsequent Transfer Date, the Seller was Seller(s) were not insolvent, the Seller will not nor would they be made insolvent by such transfer and the Seller is not transfer, nor were they aware of any pending insolvency;
(iv) the Funding Period shall not have ended;
(v) Such addition will not result the Seller(s) shall have delivered to the Trustee an Officer's Certificate confirming the satisfaction of each condition precedent specified in a material adverse tax consequence to any Noteholderthis paragraph (b) and in the related Subsequent Transfer Agreement;
(vi) The Pre-Funding Period the Seller(s) shall not have terminateddelivered an Officer's Certificate to the Trustee confirming that the representations and warranties of the Seller(s) pursuant to Section 2.03 hereof (other than to the extent such representations and warranties relate to statistical information as to the characteristics of the Initial Loans) are true and correct with respect to the Seller(s) and the Subsequent Loans, as applicable, as of the Subsequent Transfer Date;
(vii) The Seller the Seller(s) shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the Seller to the Trust, the enforceability of the Subsequent Transfer Agreement with respect to the Seller, which matters may be covered in the opinions delivered on the Closing Date;
(viii) The Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies Trustee with an Opinion of Counsel to the effect that the transfer conveyance of such the Subsequent Mortgage Loans conveyed on the Subsequent Transfer Date:
(A) will not adversely affect (1) result in the imposition of the tax status on "prohibited transactions" on the Trust Fund or contributions after the Startup Date, as defined in Sections 860F(a)(2) and 860G(d) of the NotesCode, respectively, or (2) cause the Trust Fund to fail to qualify as a REMIC at any time that any Certificates are outstanding; and
(B) will be characterized as a true sale and not as a loan secured by the Subsequent Loans;
(viii) in connection with the transfer and assignment of the Subsequent Loans, the Seller(s) shall satisfy the document delivery requirements set forth in Section 2.01(a) and (c) hereof;
(ix) The aggregate Scheduled the Seller(s) shall have delivered an Officer's Certificate to the Trustee confirming that the conveyance of the Subsequent Loans as of the Subsequent Transfer Date will not result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Offered Certificates;
(x) the Seller(s) shall have delivered an Officer's Certificate to the Trustee confirming that the Rating Agencies shall have consented to the conveyance of the Subsequent Loans to the Trust Fund;
(xi) the Seller(s) shall have delivered an Officer's Certificate to the Trustee confirming that following delivery of the Subsequent Loans to the Trust Fund, the Loans (including the Subsequent Loans, if any) and the Subsequent Loans shall have the following characteristics (calculated as of the applicable Cut-Off Date):
(A) not more than 0.70% of the Loans were 30-59 days contractually past due (assuming 30 day months);
(B) the weighted average Combined Loan-to-Value Ratio of the Loans shall not exceed 86.20%;
(C) the weighted average FICO score of the Loans shall not be less than 635;
(D) the weighted average Mortgage Rate of the Loans shall not be less than 7.000%;
(E) the weighted average margin of the Group II Loans shall not be less than 6.350%;
(F) not more than 1.00% of the Loans shall be Multi-family Loans;
(G) not less than 80.00% of the Loans will have prepayment penalties;
(H) not less than 96.88% of the Loans shall be secured by a first mortgage on the related Mortgaged Property;
(I) not less than 73.50% of the Loans shall have been originated pursuant to the Sellers' full documentation program;
(J) not less than 82.00% of the Loans shall be classified as "Grade A Credits" under the Sellers' loan underwriting standards;
(K) not more than 12.00% of the Loans shall have borrowers located in the same state;
(L) not more than 3.00% of the Loans shall be Balloon Loans;
(M) not more than 7.00% of the Loans shall be investor non-owner;
(N) not more than 77.00% of the Loans shall be cash out refinance;
(O) none of the Subsequent Group I Loans may:
(1) be contractually past due (assuming 30 day months) for 60 or more days as of the related Cut-off Date;
(2) have an original term to maturity in excess of 360 months;
(3) have a Mortgage Rate less than 5.00%;
(4) have a Cut-off Date Principal Balance in excess of $750,000;
(5) have a Combined Loan-to-Value Ratio in excess of 100%; or
(6) have an adjustable rate;
(P) none of the Subsequent Group II-A Loans may:
(1) be contractually past due (assuming 30 day months) for 60 or more days as of the related Cut-off Date;
(2) have an original term to maturity in excess of 360 months;
(3) have a Mortgage Rate less than 5.00%;
(4) have an initial fixed rate period greater than 60 months;
(5) have a Cut-off Date Principal Balance in excess of $750,000;
(6) have a Combined Loan-to-Value Ratio in excess of 100%;
(7) be a Multi-family Loan;
(8) be secured by a second or any junior lien on the related Mortgaged Property;
(9) have a margin of less than 2.00%; or
(10) have an original principal balance that exceeds agency loan balance limits; and
(Q) none of the Subsequent Group II-B Loans does not exceed may:
(1) be contractually past due (assuming 30 day months) for 60 or more days as of the related Cut-off Date;
(2) have an original term to maturity in excess of 360 months;
(3) have a Mortgage Rate less than 5.00%;
(4) have an initial fixed rate period greater than 60 months;
(5) have a Cut-off Date Principal Balance in excess of $750,000;
(6) have a Combined Loan-to-Value Ratio in excess of 100%;
(7) be secured by a second or any junior lien on the related Mortgaged Property; or
(8) have a margin of less than 2.00%.
(c) In connection with each Subsequent Transfer Date and on the related Distribution Date, the Trustee shall determine the amount on deposit and correct dispositions of Pre-Funding Earnings for such Distribution Date in accordance with the provisions of this Agreement. In the event that any such amount is released by the Trustee from the Pre-Funding Account as a result of calculation error, the Trustee shall not be liable therefor, and the Depositor shall immediately repay such amount to the Trustee.
(d) The Trustee shall acknowledge receipt on each Subsequent Transfer Date of the Closing Date;
Subsequent Loans delivered to it by delivering on such Subsequent Transfer Date to the Sellers, the Depositor and the Servicer, with respect to such Subsequent Loans, a certification substantially similar to the initial certification required under Section 2.03 hereof in the form attached hereto as Exhibit D. Within forty-five (x45) The conditions specified in Exhibit J hereto shall be met; and
(xi) On Business Days after the last related Subsequent Transfer Date, the Indenture Trustee shall, as specified in Section 2.01 hereof, review the documents required to be delivered pursuant to Section 2.09(b)(viii) hereof (or shall cause such documents to be reviewed) and shall deliver to the Sellers, the Depositor and the Trust Administrator shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans)Servicer, satisfy the parameters set forth in Exhibit J hereto.
(c) Each party hereto shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b), 3.02 and 3.03 with respect to the such Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections Loans, a certification substantially similar to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to final certification required under Section 2.03 hereof in the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, form attached hereto as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage Loans.Exhibit E.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Popular ABS Mortgage Pass-Through Trust 2005-1)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below and pursuant to the terms of each Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s delivery, on behalf of the Trust, on the related Subsequent Transfer Date to or upon the order of the Seller of the purchase price therefor, (i) the Seller shall on any Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to DLJ Mortgage Capital, Inc., (ii) DLJ Mortgage Capital, Inc. shall on any Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the Depositor and (iii) the Depositor shall sell, transfer, assign, set over and otherwise convey without recourse to the Trust, all right, title and interest of the Seller, DLJ Mortgage Capital, Inc., and Depositor, as applicable, in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) the related Scheduled Principal Balance as of the Subsequent Cut-Off Date after giving effect to payments of principal due on or before the Subsequent Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (v) all proceeds of any of the foregoing. The transfer by the Seller to the Depositor and by the Depositor to the Trust of the Subsequent Mortgage Loans set forth on the Subsequent Mortgage Loan Schedule shall be absolute and shall be intended by the Seller Seller, the Depositor and all parties hereto, other than for federal income tax purposes, to be treated as a sale by the Seller to the Depositor and as a sale by the Depositor to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Mortgage Loans and the other property specified in this Section 2.04 from the Seller to the Depositor and by the Depositor to the Trust pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, each of the Seller intends and the Depositor intend that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller shall be deemed to have granted and does hereby grant to the Depositor and the Depositor shall be deemed to have granted and does hereby grant to the Trust as of such Subsequent Transfer Date a first priority security interest in the entire right, title and interest of the Seller and of the Depositor in and to the Subsequent Mortgage Loans and all other property conveyed to the Trust pursuant to this Section 2.04 and all proceeds thereof and (ii) this Agreement shall constitute a security agreement under applicable law. The purchase price shall be one hundred percent (100%) of the Scheduled Principal Balances of the Subsequent Mortgage Loans as of the Subsequent Cut-Off Date. On or before each Subsequent Transfer Date, the Seller shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage Loans.
(b) The Seller shall transfer and deliver to the Indenture Trustee or the Custodian on behalf of the Indenture Trustee the Subsequent Mortgage Loans and the other property and rights related thereto described in paragraph (a) of this Section 2.04 only upon the satisfaction of each of the following conditions on or prior to the applicable Subsequent Transfer Date:
(i) The Seller shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Rating Agencies with an Addition Notice, which notice shall be given not less than two Business Days prior to the applicable Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Trust and the aggregate Scheduled Principal Balance of such Mortgage Loans and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date that the inclusion of such Subsequent Mortgage Loans will not result in the downgrade or withdrawal of the ratings assigned to the NotesOffered Certificates;
(ii) The Seller shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit I;
(iii) The Seller shall have delivered to the Trust Administrator for deposit in the Collection Account all principal collected and interest collected to the extent accrued and due after the Subsequent Cut-off Date;
(iv) As of each Subsequent Transfer Date, the Seller was not insolvent, the Seller will not be made insolvent by such transfer and the Seller is not aware of any pending insolvency;
(v) Such addition will not result in a material adverse tax consequence to any Noteholder;
(vi) The Pre-Funding Period shall not have terminated;
(vii) The Seller shall have provided the Indenture Trustee, the Trust Administrator, DLJ Mortgage Capital, Inc., the Depositor and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the Seller to the TrustDLJ Mortgage Capital, Inc. and the enforceability of the Subsequent Transfer Agreement with respect to the Seller, which matters may be covered in the opinions delivered on the Closing Date;
(viii) The Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor Administrator and the Rating Agencies with an Opinion of Counsel relating to the sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from DLJ Mortgage Capital, Inc. to the Depositor and from the Depositor to the Trust, the enforceability of the Subsequent Transfer Agreement with respect to the Depositor and DLJ Mortgage Capital, Inc. and to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status of the Notes, which matters may be covered in the opinions delivered on the Closing Date;
(ix) The aggregate Scheduled Principal Balance of Subsequent Mortgage Loans does not exceed the amount on deposit deposited in the Pre-Funding Account Amount as of the Closing Date;
(x) The conditions specified in Exhibit J hereto shall be met; and
(xi) On the last Subsequent Transfer Date, the Indenture Trustee and the Trust Administrator shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy the parameters set forth in Exhibit J hereto.
(c) Each party hereto shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b)3.01, 3.02 and 3.03 with respect to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage Loans.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Asset Backed Sec Corp Fieldstone Mort Inv Tr Ser 2004-2)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below this Article II and pursuant to the terms of each the related Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s delivery, Issuer's delivery on behalf of the Trust, on the related each Subsequent Transfer Date to or upon the order of the Seller Life, of all or a portion of the purchase price thereforbalance of funds in the Pre-Funding Account, the Seller Life shall on any such Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the Owner Trust, all of its right, title and interest of the Seller, in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) listed on the related Scheduled Principal Balance as of the Subsequent Cut-Off Date after giving effect to payments of principal due on or before the Subsequent Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (v) all proceeds of any of the foregoingSchedule. The transfer by the Seller Life to the Owner Trust of the Subsequent Mortgage Loans set forth on in the related Subsequent Mortgage Loan Schedule Transfer Agreement shall be absolute and shall be intended by the Seller and all parties hereto, other than for federal income tax purposes, hereto to be treated as a sale by the Seller Life to the Owner Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Mortgage Subsequent Loans and the other property specified in this Section 2.04 2.06
(a) from the Seller Life to the Owner Trust pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Seller Life intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller Life shall be deemed to have granted and does hereby grant to the Owner Trust as of such each Subsequent Transfer Date a perfected, first priority security interest in the entire right, title and interest of the Seller Life in and to the related Subsequent Mortgage Loans and all other property conveyed to the Owner Trust pursuant to this Section 2.04 2.06(a) and all proceeds thereof thereof, and (ii) this Agreement shall constitute a security agreement under applicable law. The purchase price amount released to Life from the Pre-Funding Account shall be one hundred percent (100%) of the Scheduled aggregate Principal Balances of the Subsequent Mortgage Loans as of the Subsequent related Cut-Off Date. On or before each Subsequent Transfer Date, the Seller shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage LoansDate so transferred.
(b) The Seller Indenture Trustee, at the direction of the Issuer, shall transfer and deliver contribute from the Pre-Funding Account funds in an amount equal to one hundred percent (100%) of the aggregate Principal Balances of the Subsequent Loans as of the related Cut-Off Date so transferred to the Indenture Trustee or Owner Trust and use such cash to purchase the Custodian Subsequent Loans on behalf of the Indenture Trustee the Subsequent Mortgage Loans and Owner Trust, along with the other property and rights related thereto described in paragraph (a) of this Section 2.04 above only upon the satisfaction of each of the following conditions on or prior to the applicable related Subsequent Transfer Date:
(i) The Seller Life shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Trustee and the Rating Agencies with an Addition Notice, which notice shall be given not less no fewer than two four Business Days prior to the applicable related Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Owner Trust and the aggregate Scheduled Principal Balance Balances of such Mortgage Subsequent Loans as of the related Cut-Off Date and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date provided written confirmation that the inclusion purchase of such Subsequent Mortgage Loans will not result in the downgrade a downgrade, withdrawal or withdrawal qualification of the ratings assigned to then in effect for the Outstanding Notes;
(ii) The Seller Life shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit I;
(iii) The Seller shall have delivered to the Trust Administrator for deposit deposited in the Collection Account all principal collected after the related Cut-Off Date and interest payments collected to the extent accrued and due after the related Cut-Off Date in respect of each Subsequent Loan and the related Subsequent Cut-off DateOff Date Deposit;
(iviii) As Life shall have delivered an Officer's Certificate to the Indenture Trustee confirming that, as of each Subsequent Transfer Date, the Seller Life was not insolvent, the Seller will would not be made insolvent by such transfer and the Seller is was not aware of any pending insolvency;
(viv) Such addition will not result in a material adverse tax consequence to any Noteholder;
(vi) The the Pre-Funding Period shall not have terminatedended;
(v) Life shall have delivered to the Indenture Trustee an Officer's Certificate confirming the satisfaction of each condition precedent specified in this paragraph (b) (including those set forth in clause (B) of subparagraph (vii) below) and in the related Subsequent Transfer Agreement;
(vi) Life shall have delivered an Officer's Certificate to the Indenture Trustee confirming that the representations and warranties of Life pursuant to Section 3.04 (other than to the extent representations and warranties relate to statistical information as to the characteristics of the Initial Loans in the aggregate) and pursuant to Section 3.02 are true and correct with respect to the Subsequent Loans and Life, as applicable, as of the Subsequent Transfer Date;
(vii) The Seller the Owner Trust shall not purchase a Subsequent Loan unless:
(A) each Rating Agency shall consent thereto (which consent shall be evidenced by a letter from the Rating Agency);
(B) the following conditions shall have provided been satisfied: (I) no Subsequent Loans may be 30 or more days contractually delinquent as of the Indenture Trusteeapplicable Cut-Off Date; (II) the lien securing any such Subsequent Loan must not be lower than third priority; (III) such Subsequent Loan must have an outstanding Principal Balance of at least $2,500 as of the applicable Cut-Off Date; (IV) the first payment on such Subsequent Loan must be due no later than the last day of the Due Period immediately succeeding the Due Period in which it is transferred, unless Life deposits into the Trust AdministratorCollection Account 30 days' interest on such Subsequent Loan at the Home Loan Interest Rate less the applicable Servicing Fee rate (each such amount, a "Capitalized Interest Subsequent Deposit"), in which event the Depositor first payment on such Subsequent Loan must be due no later than the last day of the second Due Period following the Due Period in which the transfer occurs; (V) such Subsequent Loan is a fully amortizing loan with level payments over the remaining term of no fewer than 10 years and no more than 25 years and the Rating Agencies scheduled maturity will be no later than April 2023; (VI) such Subsequent Loan, if a Fixed Rate Loan, must have a Home Loan Interest Rate of at least 9.10%, and, if an Adjustable Rate Loan, must have a Home Loan Interest Rate of at least 9.25%; (VII) any such Subsequent Loan must have an original Combined Loan-to-Value Ratio of no more than 135%, (VIII) such Subsequent Loan must be underwritten, re-underwritten or reviewed, as applicable, in accordance with an Opinion the underwriting guidelines of Counsel relating Life in effect at such time or in a manner similar to the sale Initial Loans, and (i.e., “True Sale Opinion”IX) following the purchase of such Subsequent Loans by the Subsequent Mortgage Loans from the Seller to the Owner Trust, the enforceability Home Loans included in the Pool must have a weighted average interest rate and a weighted average remaining term to maturity as of each respective Cut-Off Date comparable to those of the Subsequent Transfer Agreement with respect Initial Loans included in the initial Pool; and
(C) the Transferor shall have delivered an Officer's Certificate to the SellerIndenture Trustee confirming that, which matters may be covered as a result of such purchase, the percentage of the Pool Principal Balance comprised of Home Loans that do not constitute "real estate mortgages" (as set forth in Section 3.04(af)) remains the opinions delivered on the Closing Date;same or increases.
(viii) The Depositor shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and the Rating Agencies in connection with an Opinion of Counsel to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status and assignment of the Notes;Subsequent Loans, Life shall satisfy the document delivery requirements set forth in Section 2.05 hereof; and
(ix) The aggregate Scheduled Principal Balance each proposed Subsequent Loan must be listed on the Home Loan Schedule hereto as the same may be amended from time to time with the approval of the Depositor.
(c) In connection with each Subsequent Mortgage Loans does not exceed Transfer Date and on the related Payment Date, the Indenture Trustee shall determine (i) the amount on deposit and correct dispositions of the Capitalized Interest Requirement and Pre-Funding Account Earnings for such Payment Date in accordance with the provisions of this Agreement and (ii) any other necessary matters in connection with the administration of the Pre-Funding Account and the Capitalized Interest Account. In the event that any amounts are released as a result of calculation error by the Closing Date;
(x) The conditions specified in Exhibit J hereto shall be met; and
(xi) On Indenture Trustee from the last Subsequent Transfer DatePre-Funding Account or from the Capitalized Interest Account, the Indenture Trustee shall not be liable therefor and the Trust Administrator Life shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy the parameters set forth in Exhibit J hereto.
(c) Each party hereto shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b), 3.02 and 3.03 with respect immediately repay such amounts to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage LoansIndenture Trustee.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Life Financial Home Loan Owner Trust 1997-3)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below this Article II and pursuant to the terms of each the related Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s Trustee's delivery, on behalf of the TrustGrantor Trustee, on the related each Subsequent Transfer Date to or upon the order of the Seller Transferor, of all or a portion of the purchase price thereforbalance of funds in the Pre-Funding Account, the Seller Transferor shall on any such Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the TrustGrantor Trustee, all of its right, title and interest of the Seller, in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) listed on the related Scheduled Principal Balance as of the Subsequent Cut-Off Date after giving effect to payments of principal due on or before the Subsequent Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (v) all proceeds of any of the foregoingSchedule. The transfer by the Seller Transferor to the Trust Grantor Trustee of the Subsequent Mortgage Loans set forth on in the related Subsequent Mortgage Loan Schedule Transfer Agreement shall be absolute and shall be intended by the Seller and all parties hereto, other than for federal income tax purposes, hereto to be treated as a sale by the Seller Transferor to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase AgreementGrantor Trustee. If the assignment and transfer of the Mortgage Subsequent Loans and the other property specified in this Section 2.04 2.07
(a) from the Seller Transferor to the Trust Grantor Trustee pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Seller Transferor intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller Transferor shall be deemed to have granted and does hereby grant to the Trust Grantor Trustee as of such each Subsequent Transfer Date a perfected, first priority security interest in the entire right, title and interest of the Seller Transferor in and to the related Subsequent Mortgage Loans and all other property conveyed to the Trust Grantor Trustee pursuant to this Section 2.04 2.07(a) and all proceeds thereof thereof, and (ii) this Agreement shall constitute a security agreement under applicable law. The purchase price amount released to the Transferor from the Pre-Funding Account shall be one hundred percent (100%) of the Scheduled aggregate Principal Balances of the Subsequent Mortgage Loans as of the Subsequent related Cut-Off Date. On or before each Subsequent Transfer Date, the Seller shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage LoansDate so transferred.
(b) The Seller shall transfer and deliver to the Indenture Trustee or the Custodian Trustee, on behalf of the Indenture Grantor Trustee and as provided in Section 5.05 of the Sale and Servicing Agreement, shall contribute from the Pre-Funding Account funds in an amount equal to one hundred percent (100%) of the aggregate Principal Balances of the Subsequent Mortgage Loans as of the related Cut-Off Date so transferred to the Grantor Trustee and use such cash to purchase the Subsequent Loans on behalf of the Grantor Trustee, along with the other property and rights related thereto described in paragraph (a) of this Section 2.04 above only upon the satisfaction of each of the following conditions on or prior to the applicable related Subsequent Transfer Date:
(i) The Seller the Transferor shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Grantor Trustee and the Rating Agencies with an Addition Notice, which notice shall be given not less no fewer than two Business Days prior to the applicable related Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Trust Grantor Trustee and the aggregate Scheduled Principal Balance Balances of such Mortgage Subsequent Loans as of the related Cut-Off Date and the Rating Agencies shall have informed the Seller, the Depositor, the Indenture Trustee, the Trust Administrator, the Master Servicer, the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date provided written confirmation that the inclusion purchase of such Subsequent Mortgage Loans will not result in the downgrade a downgrade, withdrawal or withdrawal qualification of the ratings assigned to then in effect for the Outstanding Notes;
(ii) The Seller the Transferor shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit I;
(iii) The Seller shall have delivered to the Trust Administrator for deposit deposited in the Collection Account all principal collected after the related Cut-Off Date and interest payments collected to the extent accrued and due after the related Cut-Off Date in respect of each Subsequent Loan and the related Subsequent Cut-off DateOff Date Deposit;
(iviii) As the Transferor shall have delivered an Officer's Certificate to the Indenture Trustee and the Grantor Trustee confirming that, as of each Subsequent Transfer Date, the Seller Transferor was not insolvent, the Seller will would not be made insolvent by such transfer and the Seller is was not aware of any pending insolvency;
(viv) Such addition will not result in a material adverse tax consequence to any Noteholder;
(vi) The the Pre-Funding Period shall not have terminatedended;
(v) the Transferor shall have delivered to the Indenture Trustee and the Grantor Trustee an Officer's Certificate confirming the satisfaction of each condition precedent specified in this paragraph (b) and in the related Subsequent Transfer Agreement;
(vi) the Transferor shall have delivered an Officer's Certificate to the Indenture Trustee and the Grantor Trustee confirming that the representations and warranties of the Transferor pursuant to Section 3.04 of the Sale and Servicing Agreement (other than to the extent representations and warranties relate to statistical information as to the characteristics of the Initial Loans in the aggregate, except for Section 3.04(ap) thereof) and pursuant to Section 3.02 of the Sale and Servicing Agreement are true and correct with respect to the Subsequent Loans and Transferor, as applicable, as of the Subsequent Transfer Date;
(vii) The Seller the Grantor Trustee shall not purchase a Subsequent Loan unless (A) the Rating Agencies shall consent thereto (which consent shall not be unreasonably withheld and shall be evidenced by a letter from the Rating Agencies) and (B) the following conditions shall have provided been satisfied: (I) no Subsequent Loans may be 30 or more days contractually delinquent as of the Indenture applicable Cut-Off Date; (II) the lien securing any such Subsequent Loan must not be lower than third priority; (III) such Subsequent Loan must have an outstanding Principal Balance of at least $2,500 as of the applicable Cut-Off Date; (IV) the first payment on such Subsequent Loan must be due no later than the last day of the Due Period immediately succeeding the Due Period in which it is transferred, unless the Transferor deposits into the Collection Account 30 days' interest on such Subsequent Loan at the Home Loan Interest Rate less the applicable Servicing Fee rate (each such amount, a "Capitalized Interest Subsequent Deposit"), in which event the first payment on such Subsequent Loan must be due no later than the last day of the second Due Period following the Due Period in which the transfer occurs; (V) such Subsequent Loan is a fully amortizing loan with level payments over the remaining term of no fewer than 10 years and no more than 25 years and the scheduled maturity will be no later than September 30, 2023; (VI) such Subsequent Loan must have a Home Loan Interest Rate of at least 10.00%; (VII) any such Subsequent Loan must have an original Combined Loan-to-Value Ratio of no more than 125%, (VIII) such Subsequent Loan must be underwritten, re-underwritten or reviewed, as applicable, in accordance with the underwriting guidelines of the Transferor in effect at such time or in a manner similar to the Initial Loans, (IX) the representation and warranty contained in Section 3.04(ap) of the Sale and Servicing Agreement, concerning the status of the Home Loans on each subsequent Transfer Date under Treasury Regulation Section 301.7701(i)-1, is true, and (X) following the purchase of such Subsequent Loans by the Grantor Trustee, the Trust Administrator, Home Loans included in the Depositor Pool must have a weighted average interest rate and the Rating Agencies with an Opinion a weighted average remaining term to maturity as of Counsel relating each respective Cut-Off Date comparable to the sale (i.e., “True Sale Opinion”) those of the Subsequent Mortgage Initial Loans from the Seller to the Trust, the enforceability of the Subsequent Transfer Agreement with respect to the Seller, which matters may be covered included in the opinions delivered on the Closing Dateinitial Pool;
(viii) The Depositor shall have provided in connection with the Indenture Trusteetransfer and assignment of the Subsequent Loans, the Trust Administrator, Transferor shall satisfy the Depositor and the Rating Agencies with an Opinion of Counsel to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status of the Notes;document delivery requirements set forth in Section 2.05 hereof; and
(ix) The aggregate Scheduled Principal Balance each proposed Subsequent Loan must be listed on the Home Loan Schedule hereto as the same may be amended from time to time with the approval of the Depositor.
(c) In connection with each Subsequent Mortgage Loans does not exceed Transfer Date and on the related Payment Date, the Indenture Trustee shall determine (i) the amount on deposit and correct dispositions of the Capitalized Interest Requirement and Pre-Funding Account Earnings for such Payment Date in accordance with the provisions of the Sale and Servicing Agreement and (ii) any other necessary matters in connection with the administration of the Pre-Funding Account and the Capitalized Interest Account. In the event that any amounts are released as a result of calculation error by the Closing Date;
(x) The conditions specified in Exhibit J hereto shall be met; and
(xi) On Indenture Trustee from the last Subsequent Transfer DatePre-Funding Account or from the Capitalized Interest Account, the Indenture Trustee shall not be liable therefor and the Trust Administrator Transferor shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy the parameters set forth in Exhibit J hereto.
(c) Each party hereto shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b), 3.02 and 3.03 with respect immediately repay such amounts to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage LoansIndenture Trustee.
Appears in 1 contract
Samples: Grantor Trust Agreement (Painewebber Mort Accept Corp Iv Ditech Home Loan Ownr 1998-1)
Subsequent Transfers. (a) Subject to the satisfaction of the conditions set forth in paragraph (b) below this Article II and pursuant to the terms of each the related Subsequent Transfer Agreement, in consideration of the Indenture Trust Administrator’s Issuer's delivery, on behalf of the Trust, on the related each Subsequent Transfer Date to or upon the order of the Seller Transferor, of all or a portion of the purchase price thereforbalance of funds in the Pre-Funding Account, the Seller Transferor shall on any such Subsequent Transfer Date sell, transfer, assign, set over and otherwise convey without recourse to the TrustIssuer, all of its right, title and interest of the Seller, in and to each Subsequent Mortgage Loan transferred pursuant to such Subsequent Transfer Agreement, including (i) listed on the related Scheduled Principal Balance as of the Subsequent Cut-Off Date after giving effect to payments of principal due on or before the Subsequent Cut-Off Date; (ii) all collections in respect of interest and principal received after the Subsequent Cut-Off Date (other than principal and interest due on or before such Subsequent Cut-off Date); (iii) property which secured such Subsequent Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any insurance policies in respect of such Subsequent Mortgage Loan; and (v) all proceeds of any of the foregoingSchedule. The transfer by the Seller Transferor to the Trust Issuer of the Subsequent Mortgage Loans set forth on in the related Subsequent Mortgage Loan Schedule Transfer Agreement shall be absolute and shall be intended by the Seller and all parties hereto, other than for federal income tax purposes, hereto to be treated as a sale by the Seller Transferor to the Trust. The parties hereto intend that for federal income tax purposes the transfer of Subsequent Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Mortgage Subsequent Loans and the other property specified in this Section 2.04 2.06(a) from the Seller Transferor to the Trust pursuant to this Agreement is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Seller Transferor intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Seller Transferor shall be deemed to have granted and does hereby grant to the Trust Issuer as of such each Subsequent Transfer Date a perfected, first priority security interest in the entire right, title and interest of the Seller Transferor in and to the related Subsequent Mortgage Loans and all other property conveyed to the Trust Issuer pursuant to this Section 2.04 2.06(a) and all proceeds thereof thereof, and (ii) this Agreement shall constitute a security agreement under applicable law. The purchase price amount released to the Transferor from the Pre-Funding Account shall be one hundred percent (100%) of the Scheduled aggregate Principal Balances of the Subsequent Mortgage Loans as of the Subsequent related Cut-Off Date. On or before each Subsequent Transfer Date, the Seller shall deliver to, and deposit with the Indenture Trustee or the Custodian on behalf of the Indenture Trustee, the related documents with respect to each Subsequent Mortgage Loan transferred on such Subsequent Transfer Date, and the related Subsequent Mortgage Loan Schedule in computer readable format with respect to such Subsequent Mortgage LoansDate so transferred.
(b) The Seller Indenture Trustee, at the direction of the Issuer, shall transfer and deliver contribute from the Pre-Funding Account funds in an amount equal to one hundred percent (100%) of the aggregate Principal Balances of the Subsequent Loans as of the related Cut-Off Date so transferred to the Indenture Trustee or Trust and use such cash to purchase the Custodian Subsequent Loans on behalf of the Indenture Trustee the Subsequent Mortgage Loans and Trust, along with the other property and rights related thereto described in paragraph (a) of this Section 2.04 above only upon the satisfaction of each of the following conditions on or prior to the applicable related Subsequent Transfer Date:
(i) The Seller the Transferor shall have provided the Servicer, the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer Owner Trustee and the Rating Agencies with an Addition Notice, which notice shall be given not less no fewer than two Business Days prior to the applicable related Subsequent Transfer Date and shall designate the Subsequent Mortgage Loans to be sold to the Trust and the aggregate Scheduled Principal Balance Balances of such Mortgage Subsequent Loans as of the related Cut-Off Date; and the Rating Agencies shall have informed the Seller, the Depositor, provided written confirmation to the Indenture Trustee, Trustee and the Trust Administrator, the Master Servicer, the Servicer or the Subservicer prior to the applicable Subsequent Transfer Date Owner Trustee that the inclusion purchase of such Subsequent Mortgage Loans will not result in the downgrade a downgrade, withdrawal or withdrawal qualification of the ratings assigned to then in effect for the Outstanding Notes;
(ii) The Seller the Transferor shall have delivered to the Indenture Trustee, the Depositor, the Trust Administrator, the Master Servicer, the Subservicer and the Servicer a duly executed Subsequent Transfer Agreement in substantially the form of Exhibit I;
(iii) The Seller shall have delivered to the Trust Administrator for deposit deposited in the Collection Account all principal collected after the related Cut-Off Date and interest payments collected to the extent accrued and due after the related Cut-Off Date in respect of each Subsequent Loan and the related Subsequent Cut-off DateOff Date Deposit;
(iviii) As the Transferor shall have delivered an Officer's Certificate to the Indenture Trustee and the Owner Trustee confirming that, as of each Subsequent Transfer Date, the Seller Transferor was not insolvent, the Seller will would not be made insolvent by such transfer and the Seller is was not aware of any pending insolvency;
(viv) Such addition will not result in a material adverse tax consequence to any Noteholder;
(vi) The the Pre-Funding Period shall not have terminatedended;
(v) the Transferor shall have delivered to the Indenture Trustee and the Owner Trustee an Officer's Certificate confirming the satisfaction of each condition precedent specified in this paragraph (b) and in the related Subsequent Transfer Agreement upon which the Indenture Trustee and Owner Trustee may rely without independent verification;
(vi) the Transferor shall have delivered an Officer's Certificate to the Indenture Trustee and the Owner Trustee confirming that the representations and warranties of the Transferor pursuant to Section 3.04 hereof (other than to the extent representations and warranties relate to statistical information as to the characteristics of the Initial Loans in the aggregate) and pursuant to Section 3.02 hereof are true and correct with respect to the Subsequent Loans and the Transferor, as applicable, as of the Subsequent Transfer Date;
(vii) The Seller shall have provided the Indenture Trustee, the Trust Administrator, the Depositor and shall not purchase a Subsequent Loan unless (A) the Rating Agencies shall consent thereto (which consent shall not be unreasonably withheld and shall be evidenced by a letter from the Rating Agencies), (B) the following conditions shall have been satisfied as to each Subsequent Loan: (I) no Subsequent Loans may be 30 or more days contractually delinquent as of the applicable Cut-Off Date; (II) the lien securing any such Subsequent Loan must not be lower than third priority; (III) such Subsequent Loan must have an outstanding Principal Balance of at least $2,500 as of the applicable Cut-Off Date; (IV) the first payment on such Subsequent Loan must be due no later than the last day of the Due Period immediately succeeding the Due Period in which it is transferred, unless the Transferor deposits into the Collection Account 30 days' interest on such Subsequent Loan at the Home Loan Interest Rate less the applicable Servicing Fee rate (each such amount, a "Capitalized Interest Subsequent Deposit"), in which event the first payment on such Subsequent Loan must be due no later than the last day of the second Due Period following the Due Period in which the transfer occurs; (V) such Subsequent Loan is a fully amortizing loan with level payments over the remaining term of no fewer than 10 years and no more than 25 years and the scheduled maturity will be no later than January 2023; (VI) such Subsequent Loan must have a fixed Home Loan Interest Rate of at least 9.50%; (VII) any such Subsequent Loan must have an Opinion original Combined Loan-to-Value Ratio of Counsel relating no more than 125%, (VIII) such Subsequent Loan must be underwritten, re-underwritten or reviewed, as applicable, in accordance with the underwriting guidelines of the Transferor in effect at such time or in a manner similar to the sale Initial Loans, and (i.e., “True Sale Opinion”IX) following the purchase of the such Subsequent Mortgage Loans from the Seller to by the Trust, the enforceability Loans included in the Pool must have a weighted average interest rate and a weighted average remaining term to maturity as of each respective Cut-Off Date comparable to those of the Subsequent Transfer Agreement Initial Loans included in the initial Pool and (C) the following conditions shall have been satisfied with respect to the Seller, which matters may be covered in the opinions delivered Subsequent Loans conveyed on the Closing Subsequent Transfer Date;, (I) the average weighted Home Loan Interest Rate must be greater than or equal to 13.1%, (II) the average weighted Combined Loan-to-Value Ratio must be less than or equal to 113%, (III) the average weighted FICO Score must be greater than or equal to 680 and (IV) the average weighted remaining term to maturity must be greater than or equal to 260 months.
(viii) The Depositor shall have provided in connection with the Indenture Trusteetransfer and assignment of the Subsequent Loans, the Trust Administrator, Transferor shall satisfy the Depositor and the Rating Agencies with an Opinion of Counsel to the effect that the transfer of such Subsequent Mortgage Loans will not adversely affect the tax status of the Notes;document delivery requirements set forth in Section 2.05 hereof; and
(ix) The aggregate Scheduled Principal Balance each proposed Subsequent Loan must be listed on Exhibit A hereto as the same may be amended from time to time with the approval of the Depositor.
(c) In connection with each Subsequent Mortgage Loans does not exceed Transfer Date and on the related Distribution Date, the Indenture Trustee shall determine (i) the amount on deposit and correct dispositions of the Capitalized Interest Requirement and Pre-Funding Account Earnings for such Distribution Date in accordance with the provisions of this Agreement and (ii) any other necessary matters in connection with the administration of the Pre-Funding Account and the Capitalized Interest Account. In the event that any amounts are released as a result of calculation error by the Closing Date;
(x) The conditions specified in Exhibit J hereto shall be met; and
(xi) On Indenture Trustee from the last Subsequent Transfer DatePre-Funding Account or from the Capitalized Interest Account, the Indenture Trustee shall not be liable therefor and the Trust Administrator Transferor shall have received an accountant’s letter confirming that the characteristics of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy the parameters set forth in Exhibit J hereto.
(c) Each party hereto shall comply with their respective obligations set forth in Sections 2.01, 2.02, 3.01(b), 3.02 and 3.03 with respect immediately repay such amounts to the Subsequent Mortgage Loans delivered on each Subsequent Transfer Date. References in such Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed to refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off Date or the Closing Date, as applicable, shall be deemed to refer to the applicable related Subsequent Cut-Off Date or Subsequent Transfer Date, respectively, except that references to 360 days after the Closing Date shall remain unchanged as shall representations made with specific reference to the Initial Mortgage LoansIndenture Trustee.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Ditech Funding Corp Home Loan Owner Trust 1997-1)