Breach of Section 3. 05(b). HUD may allege a breach of a representation or warranty in Section 3.05(b) only if the breach materially and adversely affects the value of the related Mortgage Loan and may demand that Purchaser repurchase the Mortgage Loan only if the breach is not curable by Purchaser. HUD shall have sole and absolute discretion to make the final determination as to whether a breach is curable. If a breach is curable, HUD shall notify Purchaser in writing of the same and the necessary cure and, subject to the provisions of the next succeeding sentence, Purchaser shall cure such breach and pay the expenses of the same. To the extent that an alleged breach is curable by the payment of money and the amount of such payment, had it been made by Purchaser prior to the Initial Repurchase Date, would have been includable (but was not included) as an advance when calculating the Repurchase Price, such amount shall be paid by HUD (without reimbursement from Purchaser). Subject to the foregoing, in the event there exists a breach of any of the representations or warranties in Section 3.05(b) with respect to and that materially and adversely affects a Mortgage Loan, and such breach is not curable, HUD shall not be required to repurchase such Mortgage Loan but shall cooperate with Purchaser and use commercially reasonable efforts to cure the breach that led to the initial demand that HUD repurchase such Mortgage Loan and, if such breach is not curable, at HUD’s sole and absolute discretion, HUD and Purchaser shall negotiate in good faith to reach agreement on an appropriate reduction in the Sales Price, taking into consideration both the breach of Section 3.05(b) and the breach of Section 3.04. Any Mortgage Loan repurchased by Purchaser pursuant to this Section shall be repurchased for an amount equal to the Reverse Repurchase Price and, the date on which payment of the Reverse Purchase Price is made shall be the Reverse Repurchase Date.
Breach of Section 3. 04. Within the ten (10) month period after the Servicing Transfer Date, Purchaser or the New Servicer shall conduct an affirmative investigation as to whether there is a breach of any of HUD’s representations and warranties contained in Section 3.04. All breaches of Sections 3.04 (excluding Section 3.04(m), 3.04(n) and 3.04(w)) will be determined without reference to HUD’s knowledge. Notwithstanding any qualification in the representation or warranty with regard to HUD’s knowledge, the remedies available under this section for breach shall also be available upon the development of a condition or occurrence of any event described in Section 3.04(m), 3.04(n) and 3.04(w)) (hereinafter included in the term ―breach‖). Upon discovery by Purchaser or the New Servicer with respect to any Mortgage Loan of a breach of any of the representations or warranties in Section 3.04, provided the Mortgage Loan has not been modified on or after the Claim Date, Purchaser or New Servicer shall give prompt written notice to HUD and identify, in such notice, in reasonable detail, the nature of the breach (including the representations or warranties breached) and, include with such notice, documentation evidencing or supporting the alleged breach. Such notice shall also include the information required by Item 1 on Exhibit D. No breach shall be asserted regarding any typographical errors unless Purchaser demonstrates that such typographical error will have a material and adverse impact on the value of the Mortgage Loan or the benefits of the security intended to be provided by the Mortgaged Property for the Mortgage Loan. Within seventy-five (75) calendar days of its receipt of notice of any such breach, HUD shall notify Purchaser that HUD either has accepted the notice as to a Mortgage Loan or does not accept the notice as giving sufficient evidence of the asserted breach. If HUD accepts the notice as to a Mortgage Loan, HUD shall, as set forth in detail below, (x) cure such breach in all material respects, or (y) repurchase such Mortgage Loan. HUD shall have sole and absolute discretion to make the final determination as to whether a breach is curable.
Breach of Section 3. 3. In the event Borrower breaches any representation, warranty or obligation under Section 3.3, and as a result of such breach, Lender does not qualify to sell any or all of the Conversion Shares without registration pursuant to SEC Rule 144 at any time on or after the Initial Conversion Date, then until the earlier of the Maturity Date or such time that Lender qualifies to sell all of the Conversion Shares without registration pursuant to SEC Rule 144, Lender may by written notice to Borrower immediately declare default under this Note. Upon such default under this Note, the Special Default Payment shall be immediately due and payable. The “Special Default Payment” shall be an amount of cash equal to (i) the number of Conversion Shares, multiplied by (ii) the Borrower Common Stock VWAP as of the date of such written notice to Borrower declaring default under this Note pursuant to this Section 4.3.
