Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, National Association, as Trustee for Centex Home Equity Loan Trust 2006-__, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, National Association, as Trustee of Centex Home Equity Loan Trust 2006-__ under the Pooling and Servicing Agreement dated as of [_________, 2006]” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Chec Funding LLC), Pooling and Servicing Agreement (Chec Funding LLC)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, ~~National Association,~~ as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2003-B, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, ~~National Association,~~ as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2003-B under the Pooling and Servicing Agreement dated as of ~~[_________~~June 1, ~~2006]~~2003” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2003-B)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the ~~Seller and the Conduit~~ Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the ~~applicable~~ Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that ~~each of~~ the ~~Seller and the Conduit~~ Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ Nationstar Mortgage agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, National Association, as Trustee for ~~Centex~~ Nationstar Home Equity Loan Trust ~~2006-__~~2006-B, without recourse”) and signed by manual signature of the Seller ~~or the Conduit Seller, as applicable,~~ or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the ~~Seller, or the Conduit Seller, as applicable,~~ Seller stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~Nationstar Mortgage, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~Nationstar Mortgage, showing a complete chain of title from origination to the ~~Seller or the Conduit~~ Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of ~~CHEC~~Nationstar Mortgage, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller ~~or the Conduit Seller, as applicable,~~ to “JPMorgan Chase Bank, National Association, as Trustee of ~~Centex~~ Nationstar Home Equity Loan Trust ~~2006-__~~ 2006-B under the Pooling and Servicing Agreement dated as of ~~[_________~~September 1, 2006]” to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ Nationstar Mortgage shall not be required to record an assignment of a Mortgage if ~~CHEC~~ Nationstar Mortgage furnishes to the Trustee, on or before the Startup Day, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of ~~CHEC~~ Nationstar Mortgage upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the ~~Seller or the Conduit~~ Seller~~, as applicable~~; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by ~~CHEC~~Nationstar Mortgage, but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ Nationstar Mortgage to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ Nationstar Mortgage may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that ~~CHEC~~ Nationstar Mortgage certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ Nationstar Mortgage will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ Nationstar Mortgage hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of~~ the ~~Sellers~~ Seller shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~Nationstar Mortgage, which list shall state the reason why ~~CHEC~~ Nationstar Mortgage has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on ~~CHEC~~ Nationstar Mortgage to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~Nationstar Mortgage, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. ~~CHEC~~ Nationstar Mortgage agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ Nationstar Mortgage is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify ~~CHEC~~ Nationstar Mortgage of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~Nationstar Mortgage. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~Nationstar Mortgage, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) ~~CHEC~~ Nationstar Mortgage shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of ~~CHEC~~ Nationstar Mortgage in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ Nationstar Mortgage pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that ~~CHEC~~ Nationstar Mortgage shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC~~Nationstar Mortgage’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, ~~CHEC~~ Nationstar Mortgage agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by ~~CHEC~~ Nationstar Mortgage (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ Nationstar Mortgage (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of ~~CHEC~~Nationstar Mortgage, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, ~~CHEC~~ Nationstar Mortgage shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2006-B)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the ~~Conduit Seller to the~~ Depositor ~~and by the Depositor to the Trustee~~ of the Home Equity Loans set forth on the ~~applicable~~ Schedule of Home Equity Loans to the Indenture Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable lawDepositor. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ the Depositor agrees to: (i) deliver without recourse to the Custodian, on behalf of the Indenture Trustee, on the Startup Day ~~with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~with, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Indenture Trustee (“"Pay to the order of ~~JPMorgan Chase Bank, National Association~~__________________, as Indenture Trustee in trust for the registered holders of Centex Home Equity Loan ~~Trust 2006-~~Asset-Backed Notes Series 2000-__, without recourse”") and signed by manual signature of the ~~Seller or the Conduit~~ Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) ~~either~~ (1I) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2II) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~the Seller, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Indenture Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of ~~CHEC~~the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup ~~Day with respect to the Home Equity Loans~~Day, assignments of the Mortgages ~~from the Seller or the Conduit Seller, as applicable,~~ to ~~“JPMorgan Chase Bank, National Association, as Trustee of Centex Home Equity Loan Trust 2006-~~"_~~_ under the Pooling and Servicing Agreement dated as of [~~____________, ~~2006]”~~ as Indenture Trustee in trust for the registered holders of Centex Home Equity Loan Asset-Backed Notes Series 2000-__ under the Indenture dated as of _________") to be submitted for recording in the appropriate jurisdictions; ~~provided~~PROVIDED, ~~further~~FURTHER, that ~~CHEC~~ the Seller shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Indenture Trustee and the Insurer, on or before the Startup Day, at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Indenture Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating Agencies); ~~provided further~~PROVIDED FURTHER, ~~however~~HOWEVER, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Indenture Trustee or the Custodian on behalf of the Indenture Trustee ~~at the expense of CHEC~~ upon the earliest to occur of: (i) reasonable direction by the Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) if the Seller is not ~~the~~ Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (~~iii~~iv) the occurrence of a ~~bankruptcy~~ bankruptcy, insolvency or ~~insolvency~~ foreclosure relating to the ~~Seller or the Conduit~~ Seller~~, as applicable~~; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Indenture Trustee, within 15 days of receipt thereof by ~~CHEC,~~ the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day; and (iv) furnish to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating ~~Agencies,~~ Agencies at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanInsurer. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ the Seller to the Custodian on behalf of the Indenture Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ the Seller may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Indenture Trustee a copy thereof, provided that ~~CHEC~~ the Seller certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Indenture Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ The Seller hereby confirms to the Indenture Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Indenture Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section ~~3.05~~2.06, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of the Sellers~~ Seller shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Indenture Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ the Seller shall deliver to the ~~Custodian~~ Custodian, on behalf of the ~~Trustee, with a copy to the~~ Indenture Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~the Seller, which list shall state the reason why ~~CHEC~~ the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Indenture Trustee, shall make an immediate demand on ~~CHEC~~ the Seller to prepare such Mortgage assignments, and shall inform the Insurer, in writing, of the Seller's failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Indenture Trustee, shall cooperate in executing any documents prepared by the Insurer and submitted to the Custodian, on behalf of the Indenture Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Indenture Trustee. ~~CHEC~~ The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Indenture Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Indenture Trustee, the Custodian, on behalf of the Indenture Trustee shall notify ~~CHEC~~ the Seller of ~~its~~ the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. A copy of such notice shall be sent by the Custodian, on behalf of the Indenture Trustee to the Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section ~~3.04(b~~2.05(b) hereof; PROVIDED, HOWEVER, that if as of the end of such 20th calendar month the Seller demonstrates to the satisfaction of the Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Indenture Trustee, the Seller continues to demonstrate to the satisfaction of the Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Indenture Trustee shall be retained in the related Mortgage File. All recording required pursuant to this Section ~~3.05~~ 2.06 shall be accomplished at the expense of ~~CHEC~~the Seller. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Indenture Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.__. (d) ~~CHEC~~ The Seller shall transfer, assign, set over and otherwise ~~convey,~~ convey without recourse, to the Indenture Trustee all right, title and interest of ~~CHEC~~ the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Indenture Trustee on behalf of the Trust by ~~CHEC~~ the Seller pursuant to Section ~~3.04~~ 2.04, 2.05 or ~~3.06~~ 2.07 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; ~~provided~~PROVIDED, ~~however~~HOWEVER, that ~~CHEC~~ the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase ~~thereof~~ or the conveyance of a Qualified Replacement Mortgage therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC’s~~ the Seller's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable ~~repurchase date or~~ Replacement Cut-Off Date, as the case may be; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase ~~date~~ or the applicable Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Indenture Trustee on behalf of the Trust, ~~CHEC~~ the Seller agrees to (i) deliver ~~or cause to be delivered~~ without recourse to the Custodian, on behalf of the Indenture Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Indenture Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver ~~or cause to be delivered~~ the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Indenture Trustee within 15 days of receipt thereof by ~~CHEC~~ the Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section ~~3.05(b)(i)(B~~2.06(b)(i)(B), the other evidence of title required in Section ~~3.05(b)(i)(B~~2.06(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage,~~ Mortgage the Custodian, on behalf of the Indenture Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ the Seller (i) the original Note relating thereto, ~~endorsed,~~ endorsed without recourse or representation, in blank or to the order ~~of CHEC~~of, to the Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Mortgage File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, ~~CHEC~~ the Seller shall prepare ~~or cause to be prepared~~ a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Chec Funding LLC)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, ~~National Association,~~ as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2004-D, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, ~~National Association,~~ as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2004-D under the Pooling and Servicing Agreement dated as of ~~[_________~~September 1, ~~2006]~~2004” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2004-D)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit ~~Seller~~ Sellers to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit ~~Seller~~ Sellers and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit ~~Seller~~ Sellers shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original Note endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Bank One, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-~~200_-__, without recourse”") and signed by manual signature of the Seller, the Conduit Seller or the Conduit ~~Seller~~Seller II, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s 's opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or either of the Conduit ~~Seller~~Sellers, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or either of the Conduit ~~Seller~~Sellers, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or either of the Conduit ~~Seller~~Sellers, as applicable, to ~~“JPMorgan Chase Bank~~"Bank One, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-~~200_-__ under the Pooling and Servicing Agreement dated as of [_________, ~~2006]”~~ __, 200_" to be submitted for recording in the appropriate jurisdictions; ~~provided~~PROVIDED, ~~further~~FURTHER, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s 's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s 's interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); ~~provided further~~PROVIDED FURTHER, ~~however~~HOWEVER, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, the Conduit Seller or the Conduit ~~Seller~~Seller II, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit ~~Seller~~Sellers, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s 's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; ~~provided~~PROVIDED, ~~however~~HOWEVER, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s 's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Funding LLC)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, ~~National Association,~~ as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2002-B, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the ~~Pool~~ aggregate Loan Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, ~~National Association,~~ as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2002-B under the Pooling and Servicing Agreement dated as of ~~[_________~~March 1, ~~2006]~~2002” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s 's direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2002 B)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the ~~Conduit Seller to the~~ Depositor ~~and by the Depositor to the Trustee~~ of the Home Equity Loans set forth on the ~~applicable~~ Schedule of Home Equity Loans to the Indenture Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable lawDepositor. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ the Depositor agrees to: (i) deliver without recourse to the Custodian, on behalf of the Indenture Trustee, on the Startup Day ~~with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~with, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Indenture Trustee (“"Pay to the order of ~~JPMorgan Chase Bank, National Association~~, as Indenture Trustee in trust for the registered holders of Centex Home Equity Loan ~~Trust 2006-~~Asset-Backed Notes Series 200_-__, without recourse”") and signed by manual signature of the ~~Seller or the Conduit~~ Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) ~~either~~ (1I) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2II) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~the Seller, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Indenture Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of ~~CHEC~~the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup ~~Day with respect to the Home Equity Loans~~Day, assignments of the Mortgages ~~from the Seller or the Conduit Seller~~to " , as ~~applicable, to “JPMorgan Chase Bank, National Association, as~~ Indenture Trustee in trust for the registered holders of Centex Home Equity Loan ~~Trust 2006-~~Asset-Backed Notes Series 200_-__ under the ~~Pooling and Servicing Agreement~~ Indenture dated as of [_________~~, 2006]”~~ ") to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ the Seller shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Indenture Trustee and the Insurer, on or before the Startup Day, at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Indenture Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Indenture Trustee or the Custodian on behalf of the Indenture Trustee ~~at the expense of CHEC~~ upon the earliest to occur of: (i) reasonable direction by the Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) if the Seller is not ~~the~~ Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (~~iii~~iv) the occurrence of a ~~bankruptcy~~ bankruptcy, insolvency or ~~insolvency~~ foreclosure relating to the ~~Seller or the Conduit~~ Seller~~, as applicable~~; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Indenture Trustee, within 15 days of receipt thereof by ~~CHEC,~~ the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day; and (iv) furnish to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating ~~Agencies,~~ Agencies at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanInsurer. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ the Seller to the Custodian on behalf of the Indenture Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ the Seller may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Indenture Trustee a copy thereof, provided that ~~CHEC~~ the Seller certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Indenture Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ The Seller hereby confirms to the Indenture Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Indenture Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section ~~3.05~~2.06, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of the Sellers~~ Seller shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Indenture Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ the Seller shall deliver to the ~~Custodian~~ Custodian, on behalf of the ~~Trustee, with a copy to the~~ Indenture Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~the Seller, which list shall state the reason why ~~CHEC~~ the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Indenture Trustee, shall make an immediate demand on ~~CHEC~~ the Seller to prepare such Mortgage assignments, and shall inform the Insurer, in writing, of the Seller's failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Indenture Trustee, shall cooperate in executing any documents prepared by the Insurer and submitted to the Custodian, on behalf of the Indenture Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Indenture Trustee. ~~CHEC~~ The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Indenture Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Indenture Trustee, the Custodian, on behalf of the Indenture Trustee shall notify ~~CHEC~~ the Seller of ~~its~~ the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. A copy of such notice shall be sent by the Custodian, on behalf of the Indenture Trustee to the Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section ~~3.04(b~~2.05(b) hereof; provided, however, that if as of the end of such 20th calendar month the Seller demonstrates to the satisfaction of the Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Indenture Trustee, the Seller continues to demonstrate to the satisfaction of the Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Indenture Trustee shall be retained in the related Mortgage File. All recording required pursuant to this Section ~~3.05~~ 2.06 shall be accomplished at the expense of ~~CHEC~~the Seller. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Indenture Trustee a certification of an Authorized Officer in disclosing the ~~form set forth in Exhibit D.~~material terms of such prepayment. (d) ~~CHEC~~ The Seller shall transfer, assign, set over and otherwise ~~convey,~~ convey without recourse, to the Indenture Trustee all right, title and interest of ~~CHEC~~ the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Indenture Trustee on behalf of the Trust by ~~CHEC~~ the Seller pursuant to Section ~~3.04~~ 2.04, 2.05 or ~~3.06~~ 2.07 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that ~~CHEC~~ the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase ~~thereof~~ or the conveyance of a Qualified Replacement Mortgage therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC’s~~ the Seller's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable ~~repurchase date or~~ Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase ~~date~~ or the applicable Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Indenture Trustee on behalf of the Trust, ~~CHEC~~ the Seller agrees to (i) deliver ~~or cause to be delivered~~ without recourse to the Custodian, on behalf of the Indenture Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Indenture Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver ~~or cause to be delivered~~ the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Indenture Trustee within 15 days of receipt thereof by ~~CHEC~~ the Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section ~~3.05(b)(i)(B~~2.06(b)(i)(B), the other evidence of title required in Section ~~3.05(b)(i)(B~~2.06(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage,~~ Mortgage the Custodian, on behalf of the Indenture Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ the Seller (i) the original Note relating thereto, ~~endorsed,~~ endorsed without recourse or representation, in blank or to the order ~~of CHEC~~of, to the Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Mortgage File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, ~~CHEC~~ the Seller shall prepare ~~or cause to be prepared~~ a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Chec Funding LLC)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Bank One, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2000-B, without recourse”") and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B~~) either~~ ) (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to ~~the Seller~~ CHEC or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from ~~the Seller~~ CHEC or the Conduit Seller, as applicable, to ~~“JPMorgan Chase Bank~~"Bank One, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2000-B under the Pooling and Servicing Agreement dated as of ~~[_________~~June 1, ~~2006]”~~ 2000" to be submitted for recording in the appropriate jurisdictions; ~~provided~~PROVIDED, ~~further~~FURTHER, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the ~~Trustee~~Trustee and the Certificate Insurer, on or before the Startup Day, at CHEC’s 's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s 's interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating Agencies); ~~provided further~~PROVIDED FURTHER, ~~however~~HOWEVER, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) reasonable direction by the Certificate Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (~~iii~~iv) the occurrence of a ~~bankruptcy~~ bankruptcy, insolvency or ~~insolvency~~ foreclosure relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or ~~the~~ Conduit Seller, within one year after the Startup Day; and (iv) furnish to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating ~~Agencies,~~ Agencies at CHEC’s 's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanCertificate Insurer. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments, and shall inform the Certificate Insurer, in writing, of its failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. A copy of such notice shall be sent by the Custodian, on behalf of the Trustee to the Certificate Insurer and the Trustee. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof; PROVIDED, HOWEVER, that if as of the end of such 20th calendar month CHEC demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Trustee, CHEC continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; ~~provided~~PROVIDED, ~~however~~HOWEVER, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s 's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Credit Corp Home Eq Ln Asset Backed Cert Ser 2000 B)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the ~~Seller and the Conduit~~ Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on ~~the applicable~~ each Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that ~~each of~~ the ~~Seller and the Conduit~~ Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ Nationstar Mortgage agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of ~~JPMorgan Chase Bank, National Association~~The Bank of New York, as Trustee for ~~Centex~~ Home Equity Loan Trust ~~2006-__~~2007-FRE1, without recourse”) and signed by ~~manual signature of~~ the ~~Seller or the Conduit~~ Seller~~, as applicable~~, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the ~~Seller, or the Conduit Seller, as applicable,~~ Seller stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~Nationstar Mortgage, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~Nationstar Mortgage, showing a complete chain of title from origination to the Seller ~~or the Conduit Seller, if any,~~ including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of ~~CHEC~~Nationstar Mortgage, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable ~~form and acceptable for recording in the state or other jurisdiction where the Property is located~~form; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller ~~or the Conduit Seller, as applicable,~~ to “~~JPMorgan Chase Bank, National Association~~The Bank of New York, as Trustee of ~~Centex~~ Home Equity Loan Trust ~~2006-__~~ 2007-FRE1 under the Pooling and Servicing Agreement dated as of ~~[_________~~June 1, ~~2006]~~2007” to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ Nationstar Mortgage shall not be required to record an assignment of a Mortgage if ~~CHEC~~ Nationstar Mortgage furnishes to the Trustee, on or before the Startup Day, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by ~~the Custodian on behalf of the Trustee at the expense of CHEC~~ Nationstar Mortgage upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the ~~Seller or the Conduit~~ Seller~~, as applicable~~; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by ~~CHEC~~Nationstar Mortgage, but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day; and (iv) furnish to the ~~Trustee~~ Trustee, the Securities Administrator and the Rating Agencies, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, ~~(or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day)~~ for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ Nationstar Mortgage to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ Nationstar Mortgage may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that ~~CHEC~~ Nationstar Mortgage certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ Nationstar Mortgage will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ Nationstar Mortgage hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of~~ the ~~Sellers~~ Seller shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~Nationstar Mortgage, which list shall state the reason why ~~CHEC~~ Nationstar Mortgage has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the ~~Custodian, on behalf of the Trustee,~~ Servicer shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~Nationstar Mortgage, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. ~~CHEC~~ Nationstar Mortgage agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ Nationstar Mortgage is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the ~~Custodian,~~ Custodian on behalf of the Trustee via the Exception Report shall notify ~~CHEC~~ Nationstar Mortgage of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) ~~is provided before the end of such 20th calendar month~~on a monthly basis, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section ~~3.04(b~~3.04(b)(1) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~Nationstar Mortgage. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~Nationstar Mortgage, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) ~~CHEC~~ Nationstar Mortgage shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of ~~CHEC~~ Nationstar Mortgage in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ Nationstar Mortgage pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that ~~CHEC~~ Nationstar Mortgage shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC~~Nationstar Mortgage’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, ~~CHEC~~ Nationstar Mortgage agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by ~~CHEC~~ Nationstar Mortgage (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage~~Mortgage upon receipt of a written request in the form attached hereto as Exhibit N, the ~~Custodian,~~ Custodian on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ Nationstar Mortgage (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of ~~CHEC~~Nationstar Mortgage, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, ~~CHEC~~ Nationstar Mortgage shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Home Equity Loan Trust 2007-Fre1)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the ~~Conduit Seller to the~~ Depositor ~~and by the Depositor to the Trustee~~ of the Home Equity Loans set forth on the ~~applicable~~ Schedule of Home Equity Loans to the Indenture Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable lawDepositor. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ the Depositor agrees to: (i) deliver without recourse to the Custodian, on behalf of the Indenture Trustee, on the Startup Day ~~with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~with, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Indenture Trustee (“"Pay to the order of ~~JPMorgan Chase Bank, National Association~~, as Indenture Trustee in trust for the registered holders of Centex Home Equity Loan ~~Trust 2006-~~Asset-Backed Notes Series 200_-__, without recourse”") and signed by manual signature of the ~~Seller or the Conduit~~ Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) ~~either~~ (1I) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2II) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~the Seller, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Indenture Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of ~~CHEC~~the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; ; (ii) cause, within 60 days following the Startup ~~Day with respect to the Home Equity Loans~~Day, assignments of the Mortgages ~~from the Seller or the Conduit Seller~~to " , as ~~applicable, to “JPMorgan Chase Bank, National Association, as~~ Indenture Trustee in trust for the registered holders of Centex Home Equity Loan ~~Trust 2006-~~Asset-Backed Notes Series 200_-__ under the ~~Pooling and Servicing Agreement~~ Indenture dated as of [_________~~, 2006]”~~ ") to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ the Seller shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Indenture Trustee and the Insurer, on or before the Startup Day, at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Indenture Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Indenture Trustee or the Custodian on behalf of the Indenture Trustee ~~at the expense of CHEC~~ upon the earliest to occur of: (i) reasonable direction by the Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) if the Seller is not ~~the~~ Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (~~iii~~iv) the occurrence of a ~~bankruptcy~~ bankruptcy, insolvency or ~~insolvency~~ foreclosure relating to the ~~Seller or the Conduit~~ Seller~~, as applicable;~~ ; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Indenture Trustee, within 15 days of receipt thereof by ~~CHEC,~~ the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day; ~~and~~ and (iv) furnish to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating ~~Agencies,~~ Agencies at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanInsurer. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ the Seller to the Custodian on behalf of the Indenture Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ the Seller may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Indenture Trustee a copy thereof, provided that ~~CHEC~~ the Seller certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Indenture Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ The Seller hereby confirms to the Indenture Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Indenture Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section ~~3.05~~2.06, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of the Sellers~~ Seller shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Indenture Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ the Seller shall deliver to the ~~Custodian~~ Custodian, on behalf of the ~~Trustee, with a copy to the~~ Indenture Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~the Seller, which list shall state the reason why ~~CHEC~~ the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Indenture Trustee, shall make an immediate demand on ~~CHEC~~ the Seller to prepare such Mortgage assignments, and shall inform the Insurer, in writing, of the Seller's failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Indenture Trustee, shall cooperate in executing any documents prepared by the Insurer and submitted to the Custodian, on behalf of the Indenture Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Indenture Trustee. ~~CHEC~~ The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Indenture Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Indenture Trustee, the Custodian, on behalf of the Indenture Trustee shall notify ~~CHEC~~ the Seller of ~~its~~ the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. A copy of such notice shall be sent by the Custodian, on behalf of the Indenture Trustee to the Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section ~~3.04(b~~2.05(b) hereof; provided, however, that if as of the end of such 20th calendar month the Seller demonstrates to the satisfaction of the Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Indenture Trustee, the Seller continues to demonstrate to the satisfaction of the Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Indenture Trustee shall be retained in the related Mortgage File. All recording required pursuant to this Section ~~3.05~~ 2.06 shall be accomplished at the expense of ~~CHEC~~the Seller. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Indenture Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.__. (d) ~~CHEC~~ The Seller shall transfer, assign, set over and otherwise ~~convey,~~ convey without recourse, to the Indenture Trustee all right, title and interest of ~~CHEC~~ the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Indenture Trustee on behalf of the Trust by ~~CHEC~~ the Seller pursuant to Section ~~3.04~~ 2.04, 2.05 or ~~3.06~~ 2.07 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that ~~CHEC~~ the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase ~~thereof~~ or the conveyance of a Qualified Replacement Mortgage therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC’s~~ the Seller's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable ~~repurchase date or~~ Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase ~~date~~ or the applicable Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Indenture Trustee on behalf of the Trust, ~~CHEC~~ the Seller agrees to (i) deliver ~~or cause to be delivered~~ without recourse to the Custodian, on behalf of the Indenture Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Indenture Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver ~~or cause to be delivered~~ the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Indenture Trustee within 15 days of receipt thereof by ~~CHEC~~ the Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section ~~3.05(b)(i)(B~~2.06(b)(i)(B), the other evidence of title required in Section ~~3.05(b)(i)(B~~2.06(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage,~~ Mortgage the Custodian, on behalf of the Indenture Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ the Seller (i) the original Note relating thereto, ~~endorsed,~~ endorsed without recourse or representation, in blank or to the order ~~of CHEC~~of, to the Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Mortgage File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, ~~CHEC~~ the Seller shall prepare ~~or cause to be prepared~~ a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Chec Funding LLC)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, ~~National Association,~~ as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2002-C, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the ~~Pool~~ aggregate Loan Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, ~~National Association,~~ as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2002-C under the Pooling and Servicing Agreement dated as of ~~[_________~~August 1, ~~2006]~~2002” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2002-C)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the ~~Conduit Seller to the~~ Depositor ~~and by the Depositor to the Trustee~~ of the Home Equity Loans set forth on the ~~applicable~~ Schedule of Home Equity Loans to the Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that ~~any~~ either such conveyance is deemed to be a loan, the parties intend that ~~each of~~ the ~~Seller and the Conduit~~ Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity ~~Loans, CHEC~~ Loans the Seller agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Norwest Bank Minnesota, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~1999-1, without recourse”") and signed by manual signature of the ~~Seller or the Conduit~~ Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) ~~either~~ (1I) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2II) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~the Seller, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of ~~CHEC~~the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located.; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages ~~from the Seller or the Conduit Seller, as applicable,~~ to ~~“JPMorgan Chase Bank~~"Norwest Bank Minnesota, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 1999-1 under the Pooling and Servicing Agreement dated as of ~~[_________~~February 1, ~~2006]”~~ 1999" to be submitted for recording in the appropriate jurisdictions; ~~provided~~PROVIDED, ~~further~~FURTHER, that ~~CHEC~~ the Seller shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Trustee and the Certificate Insurer, on or before the Startup Day, at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to ~~perfect~~ PERFECT the Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating Agencies); ~~provided further~~PROVIDED FURTHER, ~~however~~HOWEVER, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Trustee or the Custodian on behalf of the Trustee ~~at the expense of CHEC~~ upon the earliest to occur of: (i) reasonable direction by the Certificate Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, or (iv) if the Seller is not ~~the~~ Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage~~, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable~~; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by ~~CHEC,~~ the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day); and (iv) furnish to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating ~~Agencies,~~ Agencies at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanCertificate Insurer. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ the Seller to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ the Seller may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that ~~CHEC~~ the Seller certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ The Seller hereby confirms to the Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of the Sellers~~ Seller shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ the Seller shall deliver to the ~~Custodian~~ Custodian, on behalf of ~~the Trustee, with a copy to~~ the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~the Seller, which list shall state the reason why ~~CHEC~~ the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on ~~CHEC~~ the Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer, in writing, of the Seller's failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the ~~60-~~60- day period referred to in clause (b)(ii) above, ~~CHEC~~ the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. ~~CHEC~~ The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day with respect to the Home Equity Loans and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify ~~CHEC~~ the Seller of ~~its~~ the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup ~~Day~~Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Custodian, on behalf of the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof; PROVIDED, HOWEVER, that if as of the end of such 20th calendar month the Seller demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Trustee, the Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~the Seller. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.E. (d) ~~CHEC~~ The Seller shall transfer, assign, set over and otherwise ~~convey,~~ convey without recourse, to the Trustee all right, title and interest of ~~CHEC~~ the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ the Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; ~~provided~~PROVIDED, ~~however~~HOWEVER, that ~~CHEC~~ the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase ~~thereof~~ or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC’s~~ the Seller's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable ~~repurchase date or~~ Replacement Cut-Off Date, as the case may be; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase ~~date~~ or the applicable Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, ~~CHEC~~ the Seller agrees to (i) deliver ~~or cause to be delivered~~ without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver ~~or cause to be delivered~~ the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by ~~CHEC~~ the Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage,~~ Mortgage the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ the Seller (i) the original Note relating thereto, ~~endorsed,~~ endorsed without recourse or representation, in blank or to the order ~~of CHEC~~of, to the Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, ~~CHEC~~ the Seller shall prepare ~~or cause to be prepared~~ a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Asset Receivables Corp)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, ~~National Association,~~ as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2004-C, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, ~~National Association,~~ as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2004-C under the Pooling and Servicing Agreement dated as of ~~[_________~~June 1, ~~2006]~~2004” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2004-C)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2005-A, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2005-A under the Pooling and Servicing Agreement dated as of ~~[_________~~January 1, ~~2006]~~2005” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2005-A)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the ~~Conduit Seller to the~~ Depositor ~~and by the Depositor to the Trustee~~ of the Home Equity Loans set forth on the ~~applicable~~ Schedule of Home Equity Loans to the Indenture Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable lawDepositor. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ the Depositor agrees to: (i) deliver without recourse to the Custodian, on behalf of the Indenture Trustee, on the Startup Day ~~with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~with, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Indenture Trustee (“"Pay to the order of ~~JPMorgan Chase Bank, National Association~~[ ], as Indenture Trustee in trust for ~~Centex~~ the registered holders of Renaissance Home Equity Loan ~~Trust 2006-~~Asset-Backed Notes Series 200[_]-[__], without recourse”") and signed by manual signature of the ~~Seller or the Conduit~~ Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) ~~either~~ (1I) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2II) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~the Seller, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Indenture Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of ~~CHEC~~the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 sixty (60) days following the Startup ~~Day with respect to the Home Equity Loans~~Day, assignments of the Mortgages ~~from the Seller or the Conduit Seller~~to "[ ], as ~~applicable, to “JPMorgan Chase Bank, National Association, as~~ Indenture Trustee in trust for the registered holders of ~~Centex~~ Renaissance Home Equity Loan ~~Trust 2006-~~Asset-Backed Notes Series 200[_]-[__ _] under the ~~Pooling and Servicing Agreement~~ Indenture dated as of [_________~~, 2006~~]” " to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ the Seller shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Indenture Trustee and the Insurer, on or before the Startup Day, at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Indenture Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Indenture Trustee or the Custodian on behalf of the Indenture Trustee ~~at the expense of CHEC~~ upon the earliest to occur of: (i) reasonable direction by the Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) if the Seller is not ~~the~~ Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (~~iii~~iv) the occurrence of a ~~bankruptcy~~ bankruptcy, insolvency or ~~insolvency~~ foreclosure relating to the ~~Seller or the Conduit~~ Seller~~, as applicable~~; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Indenture Trustee, within 15 fifteen (15) days of receipt thereof by ~~CHEC,~~ the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day; and (iv) furnish to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating ~~Agencies,~~ Agencies at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanInsurer. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ the Seller to the Custodian on behalf of the Indenture Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ the Seller may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Indenture Trustee a copy thereof, provided that ~~CHEC~~ the Seller certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Indenture Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ The Seller hereby confirms to the Indenture Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Indenture Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section ~~3.05~~2.06, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of the Sellers~~ Seller shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Indenture Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ the Seller shall deliver to the ~~Custodian~~ Custodian, on behalf of the ~~Trustee, with a copy to the~~ Indenture Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~the Seller, which list shall state the reason why ~~CHEC~~ the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Indenture Trustee, shall make an immediate demand on ~~CHEC~~ the Seller to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall ~~promptly deliver a copy of such Mortgage assignment to~~ inform the ~~Custodian~~Insurer, ~~on behalf~~ in writing, of the ~~Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt~~ Seller's failure to ~~obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain~~ prepare such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Renaissance Mortgage Acceptance Corp)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2005-B, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2005-B under the Pooling and Servicing Agreement dated as of ~~[_________~~March 1, ~~2006]~~2005” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2005-B)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ Nationstar Mortgage agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of ~~JPMorgan Chase Bank, National Association~~The Bank of New York, as Trustee for ~~Centex~~ Nationstar Home Equity Loan Trust ~~2006-__~~2007-C, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~Nationstar Mortgage, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~Nationstar Mortgage, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of ~~CHEC~~Nationstar Mortgage, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “~~JPMorgan Chase Bank, National Association~~The Bank of New York, as Trustee of ~~Centex~~ Nationstar Home Equity Loan Trust ~~2006-__~~ 2007-C under the Pooling and Servicing Agreement dated as of ~~[_________~~June 1, ~~2006]~~2007” to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ Nationstar Mortgage shall not be required to record an assignment of a Mortgage if ~~CHEC~~ Nationstar Mortgage furnishes to the Trustee, on or before the Startup Day, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of ~~CHEC~~ Nationstar Mortgage upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by ~~CHEC~~Nationstar Mortgage, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ Nationstar Mortgage to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ Nationstar Mortgage may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that ~~CHEC~~ Nationstar Mortgage certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ Nationstar Mortgage will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ Nationstar Mortgage hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~Nationstar Mortgage, which list shall state the reason why ~~CHEC~~ Nationstar Mortgage has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on ~~CHEC~~ Nationstar Mortgage to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~Nationstar Mortgage, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. ~~CHEC~~ Nationstar Mortgage agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ Nationstar Mortgage is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify ~~CHEC~~ Nationstar Mortgage of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section ~~3.04(b~~3.04(b)(1) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~Nationstar Mortgage. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~Nationstar Mortgage, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) ~~CHEC~~ Nationstar Mortgage shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of ~~CHEC~~ Nationstar Mortgage in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ Nationstar Mortgage pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that ~~CHEC~~ Nationstar Mortgage shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC~~Nationstar Mortgage’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, ~~CHEC~~ Nationstar Mortgage agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by ~~CHEC~~ Nationstar Mortgage (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ Nationstar Mortgage (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of ~~CHEC~~Nationstar Mortgage, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, ~~CHEC~~ Nationstar Mortgage shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2007-C)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ Nationstar Mortgage agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of ~~JPMorgan Chase Bank, National Association~~The Bank of New York, as Trustee for ~~Centex~~ Nationstar Home Equity Loan Trust ~~2006-__~~2007-A, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~Nationstar Mortgage, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~Nationstar Mortgage, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of ~~CHEC~~Nationstar Mortgage, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “~~JPMorgan Chase Bank, National Association~~The Bank of New York, as Trustee of ~~Centex~~ Nationstar Home Equity Loan Trust ~~2006-__~~ 2007-A under the Pooling and Servicing Agreement dated as of ~~[_________~~February 1, ~~2006]~~2007” to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ Nationstar Mortgage shall not be required to record an assignment of a Mortgage if ~~CHEC~~ Nationstar Mortgage furnishes to the Trustee, on or before the Startup Day, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of ~~CHEC~~ Nationstar Mortgage upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by ~~CHEC~~Nationstar Mortgage, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ Nationstar Mortgage to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ Nationstar Mortgage may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that ~~CHEC~~ Nationstar Mortgage certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ Nationstar Mortgage will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ Nationstar Mortgage hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~Nationstar Mortgage, which list shall state the reason why ~~CHEC~~ Nationstar Mortgage has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on ~~CHEC~~ Nationstar Mortgage to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~Nationstar Mortgage, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. ~~CHEC~~ Nationstar Mortgage agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ Nationstar Mortgage is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify ~~CHEC~~ Nationstar Mortgage of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~Nationstar Mortgage. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~Nationstar Mortgage, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) ~~CHEC~~ Nationstar Mortgage shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of ~~CHEC~~ Nationstar Mortgage in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ Nationstar Mortgage pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that ~~CHEC~~ Nationstar Mortgage shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC~~Nationstar Mortgage’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, ~~CHEC~~ Nationstar Mortgage agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by ~~CHEC~~ Nationstar Mortgage (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ Nationstar Mortgage (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of ~~CHEC~~Nationstar Mortgage, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, ~~CHEC~~ Nationstar Mortgage shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2007-A)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2006-A, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2006-A under the Amended and Restated Pooling and Servicing Agreement dated as of ~~[_________~~June 1, 2006]” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2006-A)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-~~20__-__, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-~~20__-__ under the Pooling and Servicing Agreement dated as of [_________ __, ~~2006]~~20__” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Funding LLC)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ Nationstar Mortgage agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of ~~JPMorgan Chase Bank, National Association~~The Bank of New York, as Trustee for ~~Centex~~ Nationstar Home Equity Loan Trust ~~2006-__~~2007-B, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~Nationstar Mortgage, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~Nationstar Mortgage, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of ~~CHEC~~Nationstar Mortgage, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “~~JPMorgan Chase Bank, National Association~~The Bank of New York, as Trustee of ~~Centex~~ Nationstar Home Equity Loan Trust ~~2006-__~~ 2007-B under the Pooling and Servicing Agreement dated as of ~~[_________~~April 1, ~~2006]~~2007” to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ Nationstar Mortgage shall not be required to record an assignment of a Mortgage if ~~CHEC~~ Nationstar Mortgage furnishes to the Trustee, on or before the Startup Day, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of ~~CHEC~~ Nationstar Mortgage upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by ~~CHEC~~Nationstar Mortgage, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at ~~CHEC~~Nationstar Mortgage’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ Nationstar Mortgage to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ Nationstar Mortgage may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that ~~CHEC~~ Nationstar Mortgage certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ Nationstar Mortgage will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ Nationstar Mortgage hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~Nationstar Mortgage, which list shall state the reason why ~~CHEC~~ Nationstar Mortgage has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on ~~CHEC~~ Nationstar Mortgage to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ Nationstar Mortgage shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~Nationstar Mortgage, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. ~~CHEC~~ Nationstar Mortgage agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ Nationstar Mortgage is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify ~~CHEC~~ Nationstar Mortgage of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section ~~3.04(b~~3.04(b)(1) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~Nationstar Mortgage. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~Nationstar Mortgage, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) ~~CHEC~~ Nationstar Mortgage shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of ~~CHEC~~ Nationstar Mortgage in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ Nationstar Mortgage pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that ~~CHEC~~ Nationstar Mortgage shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC~~Nationstar Mortgage’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, ~~CHEC~~ Nationstar Mortgage agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by ~~CHEC~~ Nationstar Mortgage (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ Nationstar Mortgage (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of ~~CHEC~~Nationstar Mortgage, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, ~~CHEC~~ Nationstar Mortgage shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2007-B)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the ~~Conduit Seller to the~~ Depositor ~~and by the Depositor to the Trustee~~ of the Home Equity Loans set forth on the ~~applicable~~ Schedule of Home Equity Loans to the Indenture Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable lawDepositor. (b) In connection with the transfer and assignment of the Home Equity Loans, ~~CHEC~~ the Depositor agrees to: (i) deliver without recourse to the Custodian, on behalf of the Indenture Trustee, on the Startup Day ~~with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~with, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Indenture Trustee (“"Pay to the order of ~~JPMorgan Chase Bank, National Association~~[ ], as Indenture Trustee in trust for ~~Centex~~ the registered holders of Renaissance Home Equity Loan ~~Trust 2006-~~Asset-Backed Notes Series 200[_]-[__], without recourse”") and signed by manual signature of the ~~Seller or the Conduit~~ Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) ~~either~~ (1I) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2II) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~the Seller, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Indenture Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of ~~CHEC~~the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 sixty (60) days following the Startup ~~Day with respect to the Home Equity Loans~~Day, assignments of the Mortgages ~~from the Seller or the Conduit Seller~~to "[ ], as ~~applicable, to “JPMorgan Chase Bank, National Association, as~~ Indenture Trustee in trust for the registered holders of ~~Centex~~ Renaissance Home Equity Loan ~~Trust 2006-~~Asset-Backed Notes Series 200[_]-[__ _] under the ~~Pooling and Servicing Agreement~~ Indenture dated as of [_________~~, 2006~~]” " to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ the Seller shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Indenture Trustee and the Insurer, on or before the Startup Day, at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Indenture Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Indenture Trustee or the Custodian on behalf of the Indenture Trustee ~~at the expense of CHEC~~ upon the earliest to occur of: (i) reasonable direction by the Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) if the Seller is not ~~the~~ Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (~~iii~~iv) the occurrence of a ~~bankruptcy~~ bankruptcy, insolvency or ~~insolvency~~ foreclosure relating to the ~~Seller or the Conduit~~ Seller~~, as applicable~~; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Indenture Trustee, within 15 fifteen (15) days of receipt thereof by ~~CHEC,~~ the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day; and (iv) furnish to the ~~Trustee~~ Indenture Trustee, the Insurer and the Rating ~~Agencies,~~ Agencies at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanInsurer. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ the Seller to the Custodian on behalf of the Indenture Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ the Seller may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Indenture Trustee a copy thereof, provided that ~~CHEC~~ the Seller certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Indenture Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ The Seller hereby confirms to the Indenture Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Indenture Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section ~~3.05~~2.06, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of the Sellers~~ Seller shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Indenture Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ the Seller shall deliver to the ~~Custodian~~ Custodian, on behalf of the ~~Trustee, with a copy to the~~ Indenture Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~the Seller, which list shall state the reason why ~~CHEC~~ the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Indenture Trustee, shall make an immediate demand on ~~CHEC~~ the Seller to prepare such Mortgage assignments, and shall inform the Insurer, in writing, of the Seller's failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Indenture Trustee, shall cooperate in executing any documents prepared by the Insurer and submitted to the Custodian, on behalf of the Indenture Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Indenture Trustee. ~~CHEC~~ The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Indenture Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Indenture Trustee, the Custodian, on behalf of the Indenture Trustee shall notify ~~CHEC~~ the Seller of ~~its~~ the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. A copy of such notice shall be sent by the Custodian, on behalf of the Indenture Trustee to the Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section ~~3.04(b~~2.05(b) hereof; provided, however, that if as of the end of such 20th calendar month the Seller demonstrates to the satisfaction of the Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Indenture Trustee, the Seller continues to demonstrate to the satisfaction of the Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Indenture Trustee shall be retained in the related Mortgage File. All recording required pursuant to this Section ~~3.05~~ 2.06 shall be accomplished at the expense of ~~CHEC~~the Seller. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Indenture Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.[__]. (d) ~~CHEC~~ The Seller shall transfer, assign, set over and otherwise ~~convey,~~ convey without recourse, to the Indenture Trustee all right, title and interest of ~~CHEC~~ the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Indenture Trustee on behalf of the Trust by ~~CHEC~~ the Seller pursuant to Section ~~3.04~~ 2.04, 2.05 or ~~3.06~~ 2.07 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that ~~CHEC~~ the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase ~~thereof~~ or the conveyance of a Qualified Replacement Mortgage therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC’s~~ the Seller's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable ~~repurchase date or~~ Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase ~~date~~ or the applicable Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Indenture Trustee on behalf of the Trust, ~~CHEC~~ the Seller agrees to (i) deliver ~~or cause to be delivered~~ without recourse to the Custodian, on behalf of the Indenture Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Indenture Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver ~~or cause to be delivered~~ the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Indenture Trustee within 15 fifteen (15) days of receipt thereof by ~~CHEC~~ the Seller (but in any event within ~~120~~ one hundred twenty (120) days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section ~~3.05(b)(i)(B~~2.06(b)(i)(B), the other evidence of title required in Section ~~3.05(b)(i)(B~~2.06(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage,~~ Mortgage the Custodian, on behalf of the Indenture Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ the Seller (i) the original Note relating thereto, ~~endorsed,~~ endorsed without recourse or representation, in blank or to the order ~~of CHEC~~of, to the Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the Mortgage File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, ~~CHEC~~ the Seller shall prepare ~~or cause to be prepared~~ a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Renaissance Mortgage Acceptance Corp)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original Note endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Bank One, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2001-B, without recourse”") and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s 's opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to ~~“JPMorgan Chase Bank~~"Bank One, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2001-B under the Pooling and Servicing Agreement dated as of ~~[_________~~June 1, ~~2006]”~~ 2001" to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s 's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s 's interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s 's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File~~. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC~~. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s 's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Funding LLC)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit ~~Seller~~ Sellers to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit ~~Seller~~ Sellers and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit ~~Seller~~ Sellers shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original Note endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Bank One, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2002-A, without recourse”") and signed by manual signature of the Seller, the Conduit Seller or the Conduit ~~Seller~~Seller II, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s 's opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or either of the Conduit ~~Seller~~Sellers, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or either of the Conduit ~~Seller~~Sellers, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or either of the Conduit ~~Seller~~Sellers, as applicable, to ~~“JPMorgan Chase Bank~~"Bank One, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2002-A under the Pooling and Servicing Agreement dated as of ~~[_________~~January 1, ~~2006]”~~ 2002" to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s 's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s 's interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, the Conduit Seller or the Conduit ~~Seller~~Seller II, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit ~~Seller~~Sellers, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s 's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s 's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2002-A)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, ~~National Association,~~ as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2002-D, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the ~~Pool~~ aggregate Loan Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, ~~National Association,~~ as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2002-D under the Pooling and Servicing Agreement dated as of ~~[_________~~December 1, ~~2006]~~2002” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Funding LLC Centex Home Equity Loan Trust 2002 D)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit ~~Seller~~ Sellers to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit ~~Seller~~ Sellers and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit ~~Seller~~ Sellers shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original Note endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Bank One, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2001-A, without recourse”") and signed by manual signature of the Seller, the Conduit Seller or the Conduit ~~Seller~~Seller II, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s 's opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or either of the Conduit ~~Seller~~Sellers, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or either of the Conduit ~~Seller~~Sellers, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or either of the Conduit ~~Seller~~Sellers, as applicable, to ~~“JPMorgan Chase Bank~~"Bank One, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2001-A under the Pooling and Servicing Agreement dated as of ~~[_________~~March 1, ~~2006]”~~ 2001" to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the ~~Trustee~~Trustee and the Certificate Insurer, on or before the Startup Day, at CHEC’s 's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s 's interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) reasonable direction by the Certificate Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (~~iii~~iv) the occurrence of a bankruptcy or insolvency relating to the Seller, the Conduit Seller or the Conduit ~~Seller~~Seller II, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or either of the Conduit ~~Seller~~Sellers, within one year after the Startup Day; and (iv) furnish to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating Agencies, at CHEC’s 's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanCertificate Insurer. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments, and shall inform the Certificate Insurer, in writing, of its failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. A copy of such notice shall be sent by the Custodian, on behalf of the Trustee to the Certificate Insurer and the Trustee. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month CHEC demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Trustee, CHEC continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s 's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Asset Backed Certs Series 2001 A)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Bank One, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2000-A, without recourse”") and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B~~) either~~ ) (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages ~~from the Seller or the Conduit Seller, as applicable,~~ to ~~“JPMorgan Chase Bank~~"Bank One, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2000-A under the Pooling and Servicing Agreement dated as of ~~[_________~~March 1, ~~2006]”~~ 2000" to be submitted for recording in the appropriate jurisdictions; ~~provided~~PROVIDED, ~~further~~FURTHER, that CHEC shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Trustee and the Certificate Insurer, on or before the Startup Day, at CHEC’s 's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to ~~perfect~~ PERFECT the Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating Agencies); ~~provided further~~PROVIDED FURTHER, ~~however~~HOWEVER, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) reasonable direction by the Certificate Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) if the Seller is not ~~the~~ Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (~~iii~~iv) the occurrence of a ~~bankruptcy~~ bankruptcy, insolvency or ~~insolvency~~ foreclosure relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day; and (iv) furnish to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating ~~Agencies,~~ Agencies at CHEC’s 's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanCertificate Insurer. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments, and shall inform the Certificate Insurer, in writing, of its failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. A copy of such notice shall be sent by the Custodian, on behalf of the Trustee to the Certificate Insurer and the Trustee. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof; PROVIDED, HOWEVER, that if as of the end of such 20th calendar month CHEC demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Trustee, CHEC continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~the Seller. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise ~~convey,~~ convey without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ the Seller pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; ~~provided~~PROVIDED, ~~however~~HOWEVER, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase ~~thereof~~ or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s 's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable ~~repurchase date or~~ Replacement Cut-Off Date, as the case may be; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase ~~date~~ or the applicable Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage,~~ Mortgage the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ CHEC (i) the original Note relating thereto, ~~endorsed,~~ endorsed without recourse or representation, in blank or to the order of of, to CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2000-A)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit ~~Seller~~ Sellers to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit ~~Seller~~ Sellers and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit ~~Seller~~ Sellers shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original Note endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Bank One, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2001-C, without recourse”") and signed by manual signature of the Seller, the Conduit Seller or the Conduit ~~Seller~~Seller II, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or either of the Conduit ~~Seller~~Sellers, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or either of the Conduit ~~Seller~~Sellers, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; ; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or either of the Conduit ~~Seller~~Sellers, as applicable, to ~~“JPMorgan Chase Bank~~"Bank One, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2001-C under the Pooling and Servicing Agreement dated as of ~~[_________~~October 1, ~~2006]”~~ 2001" to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, the Conduit Seller or the Conduit ~~Seller~~Seller II, as applicable; ; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit ~~Seller~~Sellers, within one year after the Startup Day; ~~and~~ and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Funding LLC)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, ~~National Association,~~ as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2003-A, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, ~~National Association,~~ as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2003-A under the Pooling and Servicing Agreement dated as of ~~[_________~~March 1, ~~2006]~~2003” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Funding LLC Centex Home Eq Ln Ast Bk Cert Ser 2003-A)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the ~~Conduit Seller to the~~ Depositor ~~and by the Depositor to the Trustee~~ of the Home Equity Loans set forth on the ~~applicable~~ Schedule of Home Equity Loans to the Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that ~~any~~ either such conveyance is deemed to be a loan, the parties intend that ~~each of~~ the ~~Seller and the Conduit~~ Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity ~~Loans, CHEC~~ Loans the Seller agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Norwest Bank Minnesota, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~1999-2, without recourse”") and signed by manual signature of the ~~Seller or the Conduit~~ Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) ~~either~~ (1I) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2II) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~the Seller, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of ~~CHEC~~the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located.; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages ~~from the Seller or the Conduit Seller, as applicable,~~ to ~~“JPMorgan Chase Bank~~"Norwest Bank Minnesota, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 1999-2 under the Pooling and Servicing Agreement dated as of ~~[_________~~May 1, ~~2006]”~~ 1999" to be submitted for recording in the appropriate jurisdictions; provided, further, that ~~CHEC~~ the Seller shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Trustee and the Certificate Insurer, on or before the Startup Day, at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Trustee or the Custodian on behalf of the Trustee ~~at the expense of CHEC~~ upon the earliest to occur of: (i) reasonable direction by the Certificate Insurer, (ii) the occurrence of a Servicer Termination Event, or (iiiii) ~~if the Seller is not the Servicer and with respect to any one assignment of Mortgage,~~ the occurrence of a bankruptcy, insolvency or foreclosure relating to the ~~Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit~~ Seller~~, as applicable~~; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by ~~CHEC,~~ the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day); and (iv) furnish to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating ~~Agencies,~~ Agencies at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanCertificate Insurer. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ the Seller to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ the Seller may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that ~~CHEC~~ the Seller certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. ~~CHEC~~ The Seller hereby confirms to the Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of the Sellers~~ Seller shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ the Seller shall deliver to the ~~Custodian~~ Custodian, on behalf of ~~the Trustee, with a copy to~~ the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~the Seller, which list shall state the reason why ~~CHEC~~ the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on ~~CHEC~~ the Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer, in writing, of the Seller's failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. ~~CHEC~~ The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day with respect to the Home Equity Loans and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify ~~CHEC~~ the Seller of ~~its~~ the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup ~~Day~~Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Custodian, on behalf of the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof; provided, however, that if as of the end of such 20th calendar month the Seller demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Trustee, the Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~the Seller. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.E. (d) ~~CHEC~~ The Seller shall transfer, assign, set over and otherwise ~~convey,~~ convey without recourse, to the Trustee all right, title and interest of ~~CHEC~~ the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ the Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that ~~CHEC~~ the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase ~~thereof~~ or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC’s~~ the Seller's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable ~~repurchase date or~~ Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase ~~date~~ or the applicable Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, ~~CHEC~~ the Seller agrees to (i) deliver ~~or cause to be delivered~~ without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver ~~or cause to be delivered~~ the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by ~~CHEC~~ the Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage,~~ Mortgage the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ the Seller (i) the original Note relating thereto, ~~endorsed,~~ endorsed without recourse or representation, in blank or to the order ~~of CHEC~~of, to the Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, ~~CHEC~~ the Seller shall prepare ~~or cause to be prepared~~ a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 1999-2)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the ~~Seller and the Conduit~~ Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that any such conveyance is deemed to be a loan, the parties intend that ~~each of~~ the ~~Seller and the Conduit~~ Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank, National Association~~____________, as Trustee for Centex Home Equity Loan Trust ~~2006-~~2000-__, without recourse”") and signed by manual signature of the ~~Seller or the Conduit~~ Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B~~) either~~ ) (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages ~~from the Seller or the Conduit Seller, as applicable,~~ to ~~“JPMorgan Chase Bank, National Association~~"_______________, as Trustee of Centex Home Equity Loan Trust ~~2006-~~2000-__ under the Pooling and Servicing Agreement dated as of [_____________, ~~2006]”~~ 20___" to be submitted for recording in the appropriate jurisdictions; ~~provided~~PROVIDED, ~~further~~FURTHER, that CHEC shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Trustee and the Certificate Insurer, on or before the Startup Day, at CHEC’s 's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to ~~perfect~~ PERFECT the Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating Agencies); ~~provided further~~PROVIDED FURTHER, ~~however~~HOWEVER, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) reasonable direction by the Certificate Insurer, (ii) the occurrence of a Servicer Termination Event, (iiiii) if the Seller is not ~~the~~ Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (~~iii~~iv) the occurrence of a ~~bankruptcy~~ bankruptcy, insolvency or ~~insolvency~~ foreclosure relating to the ~~Seller or the Conduit~~ Seller~~, as applicable~~; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day; and (iv) furnish to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating ~~Agencies,~~ Agencies at CHEC’s 's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanCertificate Insurer. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of~~ the ~~Sellers~~ Seller shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian ~~on behalf of the Trustee,~~ with a copy to the Trustee, on behalf of the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments, and shall inform the Certificate Insurer, in writing, of its failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. A copy of such notice shall be sent by the Custodian, on behalf of the Trustee to the Certificate Insurer and the Trustee. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof; PROVIDED, HOWEVER, that if as of the end of such 20th calendar month CHEC demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Trustee, CHEC continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~the Seller. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise ~~convey,~~ convey without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ the Seller pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; ~~provided~~PROVIDED, ~~however~~HOWEVER, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase ~~thereof~~ or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s 's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable ~~repurchase date or~~ Replacement Cut-Off Date, as the case may be; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase ~~date~~ or the applicable Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage,~~ Mortgage the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ CHEC (i) the original Note relating thereto, ~~endorsed,~~ endorsed without recourse or representation, in blank or to the order of of, to CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Funding LLC)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the ~~Conduit Seller to the~~ Depositor ~~and by the Depositor to the Trustee~~ of the Home Equity Loans set forth on the ~~applicable~~ Schedule of Home Equity Loans to the Trustee is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the ~~Seller, the Conduit~~ Seller and the ~~Depositor for bankruptcy law purposes~~Depositor. In the event that ~~any~~ either such conveyance is deemed to be a loan, the parties intend that ~~each of~~ the ~~Seller and the Conduit~~ Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity ~~Loans, CHEC~~ Loans the Seller agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity ~~Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day)~~Loan, (A) the original ~~Note~~ Notes endorsed in blank or to the order of the Trustee (“"Pay to the order of ~~JPMorgan Chase Bank~~Norwest Bank Minnesota, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~1998-4, without recourse”") and signed by manual signature of the ~~Seller or the Conduit~~ Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) ~~either~~ (1I) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or ~~CHEC~~the Seller, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance ~~policy,~~ policy or (2II) if title insurance is not available in the applicable state, the attorney’s 's opinion of title~~, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $[__________], a title report and indemnity~~, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or ~~CHEC~~the Seller, showing a complete chain of title from origination to the ~~Seller or the Conduit Seller~~Trustee, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller ~~or the Conduit Seller, as applicable,~~ from the applicable recording office), ) or a copy of the Mortgage certified as a true copy by the closing ~~agent~~ attorney or an Authorized Officer of ~~CHEC~~the Seller, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located;. (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages ~~from the Seller or the Conduit Seller, as applicable,~~ to ~~“JPMorgan Chase Bank~~"Norwest Bank Minnesota, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 1998-4 under the Pooling and Servicing Agreement dated as of ~~[_________~~November 1, ~~2006]”~~ 1998" to be submitted for recording in the appropriate jurisdictions; ~~provided~~PROVIDED, ~~further~~FURTHER, that ~~CHEC~~ the Seller shall not be required to record an assignment of a Mortgage if ~~CHEC~~ the Seller furnishes to the ~~Trustee~~Trustee and the Certificate Insurer, on or before the Startup Day, at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to ~~perfect~~ PERFECT the Trustee’s 's interest in the related Home Equity Loans (in form and substance ~~reasonably~~ satisfactory to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating Agencies); ~~provided further~~PROVIDED FURTHER, ~~however~~HOWEVER, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Trustee or the Custodian on behalf of the Trustee ~~at the expense of CHEC~~ upon the earliest to occur of: (i) reasonable direction by the Certificate Insurer, (ii) the occurrence of a Servicer Termination Event, or (iiiii) ~~if the Seller is not the Servicer and with respect to any one assignment of Mortgage,~~ the occurrence of a bankruptcy, insolvency or foreclosure relating to the ~~Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit~~ Seller~~, as applicable~~; (iii) deliver the title insurance policy or title ~~searches or reports~~searches, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by ~~CHEC,~~ the Seller (but in any event, with respect to any Mortgage as to which original recording information has been made available to the ~~Seller or the Conduit~~ Seller, within one year after the Startup Day); and (iv) furnish to the ~~Trustee~~ Trustee, the Certificate Insurer and the Rating ~~Agencies,~~ Agencies at ~~CHEC’s~~ the Seller's expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the ~~Trust. In connection with the transfer~~ Trust in form and ~~assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered~~ substance satisfactory to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity LoanCertificate Insurer. In instances where the original recorded Mortgage cannot be delivered by ~~CHEC~~ the Seller to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, ~~CHEC~~ the Seller may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that ~~CHEC~~ the Seller certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, ~~CHEC~~ the Seller will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup ~~Day~~Date. ~~CHEC~~ The Seller hereby confirms to the Trustee that it has made the appropriate entries in its general ~~records~~ accounting records, to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust ~~Estate~~ in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and ~~each of the Sellers~~ Seller shall be deemed to have satisfied ~~their~~ its obligations hereunder upon delivery to the Custodian, on behalf of the ~~Trustee,~~ Trustee of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, ~~CHEC~~ the Seller shall deliver to the ~~Custodian~~ Custodian, on behalf of ~~the Trustee, with a copy to~~ the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by ~~CHEC~~the Seller, which list shall state the reason why ~~CHEC~~ the Seller has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on ~~CHEC~~ the Seller to prepare such Mortgage assignments, and shall inform the Certificate Insurer, in writing, of the Seller's failure to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents prepared by the Certificate Insurer and submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, ~~CHEC~~ the Seller shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by ~~CHEC~~the Seller, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. ~~CHEC~~ The Seller agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that ~~CHEC~~ the Seller is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day with respect to the Home Equity Loans and has not provided to the Custodian, on behalf of the ~~Trustee,~~ Trustee a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify ~~CHEC~~ the Seller of ~~its~~ the Seller's obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup ~~Day~~Day with respect to the Home Equity Loans. A copy of such notice shall be sent by the Custodian, on behalf of the Trustee to the Certificate Insurer. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof; PROVIDED, HOWEVER, that if as of the end of such 20th calendar month the Seller demonstrates to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment and, during each month thereafter until such completed assignment is delivered to the Custodian, on behalf of the Trustee, the Seller continues to demonstrate to the satisfaction of the Certificate Insurer that it is exercising its best efforts to obtain such completed assignment, the related Home Equity Loan will not be deemed to have breached such representation. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of ~~CHEC~~the Seller. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, ~~CHEC~~the Seller, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D.E. (d) ~~CHEC~~ The Seller shall transfer, assign, set over and otherwise ~~convey,~~ convey without recourse, to the Trustee all right, title and interest of ~~CHEC~~ the Seller in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by ~~CHEC~~ the Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; ~~provided~~PROVIDED, ~~however~~HOWEVER, that ~~CHEC~~ the Seller shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase ~~thereof~~ or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on ~~CHEC’s~~ the Seller's order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s 's right, title and interest to principal and interest due on such released Home Equity Loan after the applicable ~~repurchase date or~~ Replacement Cut-Off Date, as the case may be; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase ~~date~~ or the applicable Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, ~~CHEC~~ the Seller agrees to (i) deliver ~~or cause to be delivered~~ without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver ~~or cause to be delivered~~ the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by ~~CHEC~~ the Seller (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement ~~Mortgage,~~ Mortgage the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of ~~CHEC~~ the Seller (i) the original Note relating thereto, ~~endorsed,~~ endorsed without recourse or representation, in blank or to the order ~~of CHEC~~of, to the Seller, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s 's office unrecorded due to a defect therein, ~~CHEC~~ the Seller shall prepare ~~or cause to be prepared~~ a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Asset Receivables Corp)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, ~~National Association,~~ as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2004-A, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, ~~National Association,~~ as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2004-A under the Pooling and Servicing Agreement dated as of ~~[_________~~January 1, ~~2006]~~2004” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2004-A)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2005-C, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2005-C under the Pooling and Servicing Agreement dated as of ~~[_________~~June 1, ~~2006]~~2005” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2005-C)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, ~~National Association,~~ as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2003-C, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, ~~National Association,~~ as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2003-C under the Pooling and Servicing Agreement dated as of ~~[_________~~September 1, ~~2006]~~2003” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Funding LLC Centex Home Equity Loan Trust 2003-C)

Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages. (a) The transfer by the Seller and the Conduit Seller to the Depositor and by the Depositor to the Trustee of the Home Equity Loans set forth on the applicable Schedule of Home Equity Loans is absolute and is intended by the Owners and all parties hereto to be treated as a sale by the Seller, the Conduit Seller and the Depositor for bankruptcy law purposes. In the event that any such conveyance is deemed to be a loan, the parties intend that each of the Seller and the Conduit Seller shall be deemed to have granted to the Depositor and the Depositor shall be deemed to have granted to the Trustee a security interest in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the transfer and assignment of the Home Equity Loans, CHEC agrees to: (i) deliver without recourse to the Custodian, on behalf of the Trustee, on the Startup Day with respect to each Home Equity Loan (except that, in the case of any Delayed Delivery Home Equity Loans, such delivery may take place within twenty (20) days following the Startup Day), (A) the original Note endorsed in blank or to the order of the Trustee (“Pay to the order of JPMorgan Chase Bank, National Association, as Trustee for Centex Home Equity Loan Trust ~~2006-__~~2005-D, without recourse”) and signed by manual signature of the Seller or the Conduit Seller, as applicable, or, if the original Note has been lost or destroyed and not replaced, an original lost note affidavit from the Seller, or the Conduit Seller, as applicable, stating that the original Note was lost or destroyed, together with a copy of the related Note, such lost note affidavits not to exceed 5% of the Pool Balance as of the Cut-Off Date; (B) either (1) if the original title insurance policy is not available, the original title insurance commitment or a copy thereof certified as a true copy by the closing agent or CHEC, and when available, the original title insurance policy or a copy certified by the issuer of the title insurance policy, (2) if title insurance is not available in the applicable state, the attorney’s opinion of title, or (3) for a Home Equity Loan the original principal balance of which was equal to or less than $~~[__________]~~40,000, a title report and indemnity, (C) originals or copies of all intervening assignments certified as true copies by the closing agent or CHEC, showing a complete chain of title from origination to the Seller or the Conduit Seller, if any, including warehousing assignments, if recorded, (D) originals of all assumption and modification agreements, if any, (E) either: (1) the original Mortgage, with evidence of recording thereon (if such original Mortgage has been returned to the Seller or the Conduit Seller, as applicable, from the applicable recording office), or a copy of the Mortgage certified as a true copy by the closing agent or an Authorized Officer of CHEC, or (2) a copy of the Mortgage certified by the public recording office in those instances where the original recorded Mortgage has been lost and (F) the original assignments of Mortgages (as described in clause (b)(ii)) in recordable form and acceptable for recording in the state or other jurisdiction where the Property is located; (ii) cause, within 60 days following the Startup Day with respect to the Home Equity Loans, assignments of the Mortgages from the Seller or the Conduit Seller, as applicable, to “JPMorgan Chase Bank, National Association, as Trustee of Centex Home Equity Loan Trust ~~2006-__~~ 2005-D under the Pooling and Servicing Agreement dated as of ~~[_________~~October 1, ~~2006]~~2005” to be submitted for recording in the appropriate jurisdictions; provided, further, that CHEC shall not be required to record an assignment of a Mortgage if CHEC furnishes to the Trustee, on or before the Startup Day, at CHEC’s expense, an Opinion of Counsel with respect to the relevant jurisdiction that such recording is not necessary to perfect the Trustee’s interest in the related Home Equity Loans (in form and substance reasonably satisfactory to the Trustee and the Rating Agencies); provided further, however, notwithstanding the delivery of any legal opinions, each assignment of Mortgage shall be recorded by the Custodian on behalf of the Trustee at the expense of CHEC upon the earliest to occur of: (i) the occurrence of a Servicer Termination Event, (ii) if the Seller is not the Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, or (iii) the occurrence of a bankruptcy or insolvency relating to the Seller or the Conduit Seller, as applicable; (iii) deliver the title insurance policy or title searches or reports, the original Mortgages and such recorded assignments, together with originals or duly certified copies of any and all prior assignments (other than unrecorded warehouse assignments), to the Custodian, on behalf of the Trustee, within 15 days of receipt thereof by CHEC, but in any event, with respect to any Mortgage as to which original recording information has been made available to the Seller or the Conduit Seller, within one year after the Startup Day; and (iv) furnish to the Trustee and the Rating Agencies, at CHEC’s expense, an Opinion of Counsel with respect to the sale and perfection of the Home Equity Loans delivered to the Trust. In connection with the transfer and assignment set forth in clause (i) above, the Depositor has delivered or caused to be delivered to the Custodian, on behalf of the Trustee, (or, in the case of the Delayed Delivery Home Equity Loans, will deliver or cause to be delivered to the Custodian, on behalf of the Trustee, within twenty (20) days following the Startup Day) for the benefit of the Certificateholders the documents or instruments set forth in clause (i) above, with respect to each Home Equity Loan. In instances where the original recorded Mortgage cannot be delivered by CHEC to the Custodian on behalf of the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, CHEC may in lieu of delivering such original recorded Mortgage, deliver to the Custodian on behalf of the Trustee a copy thereof, provided that CHEC certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, CHEC will deliver or cause to be delivered the original recorded Mortgage to the Custodian on behalf of the Trustee promptly upon receipt of the original recorded Mortgage but in no event later than one year after the Startup Day. CHEC hereby confirms to the Trustee that it has made the appropriate entries in its general records to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust Estate in accordance with the terms of the trust created hereunder. Notwithstanding anything to the contrary contained in this Section 3.05, in those instances where the public recording office retains the original Mortgage, the assignment of a Mortgage or the intervening assignments of the Mortgage after it has been recorded, the Depositor and each of the Sellers shall be deemed to have satisfied their obligations hereunder upon delivery to the Custodian, on behalf of the Trustee, of a copy of such Mortgage, such assignment or assignments of Mortgage certified by the public recording office to be a true copy of the recorded original thereof. Notwithstanding anything to the contrary in this Section 3.05, within twenty days after the Startup Day, the Seller shall either (i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or the Custodian, on behalf of the Trustee, or other designee of the Depositor the File as required pursuant to this Section 3.05 for each Delayed Delivery Home Equity Loan or (ii) (A) substitute a Qualified Replacement Mortgage for the Delayed Delivery Home Equity Loan or (B) repurchase the Delayed Delivery Home Equity Loan, which substitution or repurchase shall be accomplished in the manner and subject to the conditions set forth in Section 3.06(b); provided, however, that if the Seller fails to deliver a File for any Delayed Delivery Home Equity Loan within the twenty-day period provided above, the Seller shall use its best reasonable efforts to effect a substitution, rather than a repurchase of, such Delayed Delivery Home Equity Loan and provided further that the cure period provided for in Section 3.06(b) shall not apply to the initial delivery of the File for such Delayed Delivery Home Equity Loan, but rather the Seller shall have five (5) Business Days to cure such failure to deliver. At the end of such twenty-day period the Trustee shall send a Delayed Delivery Certification for the Delayed Delivery Home Equity Loans delivered during such twenty-day period in accordance with the provisions of Section 3.06. Not later than ten days following the end of the 60-day period referred in clause (b)(ii) above, CHEC shall deliver to the Custodian on behalf of the Trustee, with a copy to the Trustee, a list of all Mortgages for which no Mortgage assignment has yet been submitted for recording by CHEC, which list shall state the reason why CHEC has not yet submitted such Mortgage assignments for recording. With respect to any Mortgage assignment disclosed on such list as not yet submitted for recording for a reason other than a lack of original recording information, the Custodian, on behalf of the Trustee, shall make an immediate demand on CHEC to prepare such Mortgage assignments. Thereafter, the Custodian, on behalf of the Trustee, shall cooperate in executing any documents submitted to the Custodian, on behalf of the Trustee in connection with this provision. Following the expiration of the 60-day period referred to in clause (b)(ii) above, CHEC shall promptly prepare a Mortgage assignment for any Mortgage for which original recording information is subsequently received by CHEC, and shall promptly deliver a copy of such Mortgage assignment to the Custodian, on behalf of the Trustee. CHEC agrees that it will follow its normal servicing procedures and attempt to obtain the original recording information necessary to complete a Mortgage assignment. In the event that CHEC is unable to obtain such recording information with respect to any Mortgage prior to the end of the 18th calendar month following the Startup Day and has not provided to the Custodian, on behalf of the Trustee, a Mortgage assignment with evidence of recording thereon relating to the assignment of such Mortgage to the Trustee, the Custodian, on behalf of the Trustee shall notify CHEC of its obligation to provide a completed assignment (with evidence of recording thereon) on or before the end of the 20th calendar month following the Startup Day. If no such completed assignment (with evidence of recording thereon) is provided before the end of such 20th calendar month, the related Home Equity Loan shall be deemed to have breached the representation contained in clause (xxii) of Section 3.04(b) hereof. The requirement to deliver a completed assignment with evidence of recording thereon will be deemed satisfied upon delivery of a copy of the completed assignment certified by the applicable public recording office. Copies of all Mortgage assignments received by the Custodian on behalf of the Trustee shall be retained in the related File. All recording required pursuant to this Section 3.05 shall be accomplished at the expense of CHEC. (c) In the case of Home Equity Loans which have been prepaid in full on or after the Cut-Off Date and prior to the Startup Day, CHEC, in lieu of the foregoing, will deliver within six (6) days after the Startup Day to the Trustee a certification of an Authorized Officer in the form set forth in Exhibit D. (d) CHEC shall transfer, assign, set over and otherwise convey, without recourse, to the Trustee all right, title and interest of CHEC in and to any Qualified Replacement Mortgage delivered to the Custodian, on behalf of the Trustee on behalf of the Trust by CHEC pursuant to Section 3.04 or 3.06 hereof and all its right, title and interest to principal and interest due on such Qualified Replacement Mortgage on and after the applicable Replacement Cut-Off Date; provided, however, that CHEC shall reserve and retain all right, title and interest in and to payments of principal and interest due on such Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date. (e) As to each Home Equity Loan released from the Trust in connection with a repurchase thereof or the conveyance of a Qualified Replacement Mortgage therefor, the Trustee will transfer, assign, set over and otherwise convey without recourse or representation, on CHEC’s order, all of its right, title and interest in and to such released Home Equity Loan and all the Trust’s right, title and interest to principal and interest due on such released Home Equity Loan after the applicable repurchase date or Replacement Cut-Off Date, as the case may be; provided, however, that the Trust shall reserve and or and retain all right, title and interest in and to payments of principal and interest due on such released Home Equity Loan prior to such repurchase date or Replacement Cut-Off Date, as the case may be. (f) In connection with any transfer and assignment of a Qualified Replacement Mortgage to the Trustee on behalf of the Trust, CHEC agrees to (i) deliver or cause to be delivered without recourse to the Custodian, on behalf of the Trustee on the date of delivery of such Qualified Replacement Mortgage the original Note relating thereto, endorsed in blank or to the order of the Trustee, (ii) cause promptly to be recorded an assignment in the appropriate jurisdictions, (iii) deliver or cause to be delivered the original Qualified Replacement Mortgage and such recorded assignment, together with original or duly certified copies of any and all prior assignments, to the Custodian, on behalf of the Trustee within 15 days of receipt thereof by CHEC (but in any event within 120 days after the date of conveyance of such Qualified Replacement Mortgage) and (iv) deliver the title insurance policy, or where no such policy is required to be provided under Section 3.05(b)(i)(B), the other evidence of title required in Section 3.05(b)(i)(B). (g) As to each Home Equity Loan released from the Trust in connection with a repurchase or the conveyance of a Qualified Replacement Mortgage, the Custodian, on behalf of the Trustee shall deliver on the date of such repurchase or conveyance of such Qualified Replacement Mortgage and on the order of CHEC (i) the original Note relating thereto, endorsed, without recourse or representation, in blank or to the order of CHEC, (ii) the original Mortgage so released and all assignments relating thereto and (iii) such other documents as constituted the File with respect thereto. (h) If a Mortgage assignment is lost during the process of recording, or is returned from the recorder’s office unrecorded due to a defect therein, CHEC shall prepare or cause to be prepared a substitute assignment or cure such defect, as the case may be, and thereafter cause each such assignment to be duly recorded.

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Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2005-D)

Common use of Sale Treatment of the Home Equity Loans and Qualified Replacement Mortgages Clause in Contracts