Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the Originator, the NIMS Insurer, the Seller and the Servicer of such defect, missing document or breach and request that the Originator or the Seller, as applicable, deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of the Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection Account and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Depositor, the NIMS Insurer and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the Depositor, the NIMS Insurer and the Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the Custodian, the Servicer and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and written notice by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties hereto and the Trustee shall give written notice to the Originator and the Seller. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the Depositor, the Originator or the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Mortgage Asset Securitization Transactions, Inc. Mortgage Pass-Through Certificates, Series 2004-Wmc3), Pooling and Servicing Agreement (Mastr Asset Backed Securities Trust 2004-Fre1), Pooling and Servicing Agreement (Mastr Asset Backed Securities Trust 2004-Wmc2)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice from the Custodian of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the ~~Seller~~ Seller, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement ~~(including any representation~~or the Assignment Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall ~~promptly notify~~ request that the ~~Originator, the NIMS Insurer, the Seller and the Servicer of~~ Originator deliver such ~~defect,~~ missing document or ~~breach and request~~ that the Originator or the ~~Seller, as applicable, deliver such missing document or~~ Seller cure such defect or breach within 90 days from the date the Originator or the ~~Seller, as applicable,~~ Seller was notified of such missing document, defect or breach, and if the Originator or the ~~Seller, as applicable,~~ Seller does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce (in the ~~obligations of~~ manner set forth in Section 2.01) the Originator’s obligation under the Master Agreement or the Assignment Agreement or the Seller’s obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ of its obligation to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within~~ on or prior to the Determination Date following the expiration of such 90 ~~days after the date on which the Originator or the Seller, as applicable, was notified~~ day period (subject to Section ~~2.03(c~~2.03(e)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection ~~Account~~ Account, and the ~~Trustee~~ Trustee, (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or ~~the~~ Seller, as applicable, any Mortgage Loan released pursuant ~~hereto~~hereto and the Trustee and the Custodian shall have no further responsibility with regard to such Mortgage File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(d); provided, however, the Seller may not substitute for any Mortgage Loan which breaches a representation or warranty regarding abusive or predatory lending laws. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS(R)~~ MERS® System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the ~~MERS(R)~~ MERS® System in accordance with MERS' ’ rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee ~~and~~ on behalf of the Certificateholders. Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects. (b) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of any representation, warranty or covenant of the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (c) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee~~ Trustee, (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage,~~ Mortgage and the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment ~~Amount~~ (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) ), shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~ten Business Days~~ 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such Deleted Mortgage Loan ~~on or before~~ in the Due ~~Date in~~ Period preceding the month of ~~substitution,~~ substitution and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the ~~Certificateholders and~~ Trustee, who shall forward such notice to the ~~NIMS Insurer~~ Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee,~~ Trustee and the Custodian~~, the Servicer and the NIMS Insurer~~. Upon such ~~substitution~~substitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the ~~Mortgage Loan Purchase~~ Assignment Agreement, ~~including,~~ including all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase Agreement~~Assignment Agreement as of the date of substitution. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "“Substitution ~~Adjustment Amount"~~Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable ~~Net~~ Mortgage Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution ~~Adjustment Amount~~Adjustment, if any, and the ~~Trustee~~ Trustee, (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, pursuant to the terms of the Assignment Agreement, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee ~~and the NIMS Insurer~~ an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section ~~860F(a)(1~~860F(a)(I) of the Code or on "“contributions after the startup date" ” under Section ~~860G(d)(1~~860G(d)(I) of the ~~Code,~~ Code or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (cd) Upon discovery by the Depositor~~, the NIMS Insurer, the Originator, the Seller~~, the Servicer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties ~~hereto and the Trustee shall give written notice to the Originator and the Seller~~hereto. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) by the Originator ~~or the Seller, as the case may be,~~ if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator ~~or the Seller, as the case may be,~~ under the ~~Mortgage Loan Purchase Agreement,~~ Assignment Agreement or (ii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.06, or if its status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to the ~~Depositor, the Originator~~ Depositor or the ~~Seller~~Originator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty. (e) Upon discovery or receipt of written notice of a breach by the Seller of any representation, warranty or covenant made by the Seller under the Assignment Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, and if either (i) such Mortgage Loan is not in breach of any representation, warranty or covenant of the Originator or (ii) the Originator has failed to remedy such representation, warranty or covenant with respect to such Mortgage Loan, then the Trustee shall enforce the obligation of the Seller to remedy such breach, to the extent provided in the Assignment Agreement, in the manner and within the time periods set forth in the Assignment Agreement.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-Wf2), Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-Eq1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice from the Trustee of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the ~~Seller~~ Seller, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement ~~(including any representation~~or the Assignment Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall ~~promptly notify~~ request that the ~~Originator, the NIMS Insurer, the Seller and the Servicer of~~ Originator deliver such ~~defect,~~ missing document or ~~breach and request~~ that the Originator or the ~~Seller, as applicable, deliver such missing document or~~ Seller cure such defect or breach within 90 days from the date the Originator or the ~~Seller, as applicable,~~ Seller was notified of such missing document, defect or breach, and if the Originator or the ~~Seller, as applicable,~~ Seller does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce (in the ~~obligations of~~ manner set forth in Section 2.01) the Originator’s obligation under the Master Agreement or the Assignment Agreement or the Seller’s obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ of its obligation to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within~~ on or prior to the Determination Date following the expiration of such 90 ~~days after the date on which the Originator or the Seller, as applicable, was notified~~ day period (subject to Section ~~2.03(c~~2.03(e)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Servicer of such deposit, shall release (or cause the Custodian to release) to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or ~~the~~ Seller, as applicable, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage ~~File~~File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above~~, if so provided in the Mortgage Loan Purchase Agreement~~, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(d); provided, however, the ~~Originator or the Seller, as applicable,~~ Seller may not substitute ~~a Qualified Substitute~~ for any Mortgage Loan ~~for any Deleted Mortgage Loan that violates any~~ which breaches a representation or warranty regarding abusive or predatory ~~or abusive~~ lending ~~law~~laws. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. In order to facilitate the discovery of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator of any representation, warranty or covenant under the Master Agreement in respect of any Mortgage Loan which materially adversely affects the value of that Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall have the right to request from the Originator, on behalf of the Trust Fund, a copy of the Mortgage File (including any documents related thereto, such as payment histories, collection screens and payoff amounts) from the Originator, or if any portion or copy of such Mortgage File is being held by the Servicer or the Custodian, from the Servicer or the Custodian, as applicable and the ~~Certificateholders~~Originator, the Servicer or the Custodian, as applicable, are hereby authorized to deliver such file to the Depositor. In addition, within 5 Business Days after request by the Depositor therefor, the Trustee, in its capacity as Custodian, shall provide a copy of any Mortgage File in its possession to the Depositor. The Depositor shall pay any costs and expenses of the Custodian incurred in connection with the provision or examination of any such Mortgage File requested pursuant to the preceding sentence. Notwithstanding the foregoing, the Depositor shall not have any obligation to investigate whether the Originator has complied with its obligations under the Master Agreement or the Assignment Agreement or to enforce any of such obligations. (b) Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects. (c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of any representation, warranty or covenant of the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage,~~ Mortgage and the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment ~~Amount~~ (as described below), if any, in connection with such substitution. The Trustee shall acknowledge (or cause the Custodian ~~on behalf of the Trustee~~to acknowledge) ~~shall acknowledge~~ receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~ten Business Days~~ 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor,~~ Depositor and the Servicer (with a copy to the NIMS ~~Insurer and the Servicer~~Insurer), with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee shall deliver (or cause the Custodian ~~on behalf of the Trustee~~to deliver) ~~shall deliver~~ to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer (with a copy to the NIMS Insurer) a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such Deleted Mortgage Loan ~~on or before~~ in the Due ~~Date in~~ Period preceding the month of ~~substitution,~~ substitution and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the ~~Certificateholders~~ Trustee and the NIMS ~~Insurer~~ Insurer, who shall forward such notice to the Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee,~~ Trustee and the ~~Custodian, the Servicer~~ Custodian and the NIMS Insurer. Upon such ~~substitution~~substitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the ~~Mortgage Loan Purchase~~ Assignment Agreement, ~~including,~~ including all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase Agreement~~Assignment Agreement as of the date of substitution. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "“Substitution ~~Adjustment Amount"~~Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable ~~Net~~ Mortgage Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution ~~Adjustment Amount~~Adjustment, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer of such deposit, shall release (or cause the Custodian to release) to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, pursuant to the terms of the Assignment Agreement, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section ~~860F(a)(1~~860F(a)(I) of the Code or on "“contributions after the startup date" ” under Section ~~860G(d)(1~~860G(d)(I) of the ~~Code,~~ Code or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (ce) Upon discovery by the Depositor, the ~~NIMS Insurer~~Servicer, the ~~Originator, the Seller, the Servicer~~ NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties ~~hereto and the Trustee shall give written notice to the Originator and the Seller~~hereto. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) by the Originator ~~or the Seller, as the case may be,~~ if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator ~~or the Seller, as the case may be,~~ under the ~~Mortgage Loan Purchase Agreement,~~ Master Agreement or (ii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.06, or if its status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the ~~Depositor, the Originator~~ Depositor or the ~~Seller~~Originator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty. (f) Upon discovery or receipt of written notice of a breach by the Seller of any representation, warranty or covenant made by the Seller under the Assignment Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, and if either (i) such Mortgage Loan is not in breach of any representation, warranty or covenant of the Originator or (ii) the Originator has failed to remedy such representation, warranty or covenant with respect to such Mortgage Loan, then the Trustee shall enforce the obligation of the Seller to remedy such breach, to the extent provided in the Assignment Agreement, in the manner and within the time periods set forth in the Assignment Agreement.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt5), Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt4)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Ast Back Certs Ser 2003-1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice from the Trustee of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the ~~Seller~~ Seller, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement ~~(including any representation~~or the Assignment Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall ~~promptly notify~~ request that the ~~Originator, the NIMS Insurer, the Seller and the Servicer of~~ Originator deliver such ~~defect,~~ missing document or ~~breach and request~~ that the Originator or the ~~Seller, as applicable, deliver such missing document or~~ Seller cure such defect or breach within 90 days from the date the Originator or the ~~Seller, as applicable,~~ Seller was notified of such missing document, defect or breach, and if the Originator or the ~~Seller, as applicable,~~ Seller does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce (in the ~~obligations of~~ manner set forth in Section 2.01) the Originator’s obligation under the Master Agreement or the Assignment Agreement or the Seller’s obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ of its obligation to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within~~ on or prior to the Determination Date following the expiration of such 90 ~~days after the date on which the Originator or the Seller, as applicable, was notified~~ day period (subject to Section ~~2.03(c~~2.03(e)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Servicer of such deposit, shall release (or cause the Custodian to release) to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or ~~the~~ Seller, as applicable, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage ~~File~~File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above~~, if so provided in the Mortgage Loan Purchase Agreement~~, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(d); provided, however, the ~~Originator or the Seller, as applicable,~~ Seller may not substitute ~~a Qualified Substitute~~ for any Mortgage Loan ~~for any Deleted Mortgage Loan that violates any~~ which breaches a representation or warranty regarding abusive or predatory ~~or abusive~~ lending ~~law~~laws. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. In order to facilitate the discovery of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator of any representation, warranty or covenant under the Master Agreement in respect of any Mortgage Loan which materially adversely affects the value of that Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall have the right to request from the Originator, on behalf of the Trust Fund, a copy of the Mortgage File (including any documents related thereto, such as payment histories, collection screens and payoff amounts) from the Originator, or if any portion or copy of such Mortgage File is being held by the Servicer or the Custodian, from the Servicer or the Custodian, as applicable and the ~~Certificateholders~~Originator, the Servicer or the Custodian, as applicable, are hereby authorized to deliver such file to the Depositor. In addition, within 5 Business Days after request by the Depositor therefor, the Trustee, in its capacity as Custodian, shall provide a copy of any Mortgage File in its possession to the Depositor. The Depositor shall pay any costs and expenses of the Custodian incurred in connection with the provision or examination of any such Mortgage File requested pursuant to the preceding sentence. (b) Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects. (c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of any representation, warranty or covenant of the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage,~~ Mortgage and the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment ~~Amount~~ (as described below), if any, in connection with such substitution. The Trustee shall acknowledge (or cause the Custodian ~~on behalf of the Trustee~~to acknowledge) ~~shall acknowledge~~ receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~ten Business Days~~ 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor,~~ Depositor and the Servicer (with a copy to the NIMS ~~Insurer and the Servicer~~Insurer), with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee shall deliver (or cause the Custodian ~~on behalf of the Trustee~~to deliver) ~~shall deliver~~ to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer (with a copy to the NIMS Insurer) a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such Deleted Mortgage Loan ~~on or before~~ in the Due ~~Date in~~ Period preceding the month of ~~substitution,~~ substitution and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the ~~Certificateholders~~ Trustee and the NIMS ~~Insurer~~ Insurer, who shall forward such notice to the Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee,~~ Trustee and the ~~Custodian, the Servicer~~ Custodian and the NIMS Insurer. Upon such ~~substitution~~substitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the ~~Mortgage Loan Purchase~~ Assignment Agreement, ~~including,~~ including all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase Agreement~~Assignment Agreement as of the date of substitution. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "“Substitution ~~Adjustment Amount"~~Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable ~~Net~~ Mortgage Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution ~~Adjustment Amount~~Adjustment, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer of such deposit, shall release (or cause the Custodian to release) to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, pursuant to the terms of the Assignment Agreement, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section ~~860F(a)(1~~860F(a)(I) of the Code or on "“contributions after the startup date" ” under Section ~~860G(d)(1~~860G(d)(I) of the ~~Code,~~ Code or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (ce) Upon discovery by the Depositor, the ~~NIMS Insurer~~Servicer, the ~~Originator, the Seller, the Servicer~~ NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties ~~hereto and the Trustee shall give written notice to the Originator and the Seller~~hereto. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) by the Originator ~~or the Seller, as the case may be,~~ if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator ~~or the Seller, as the case may be,~~ under the ~~Mortgage Loan Purchase Agreement,~~ Master Agreement or (ii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.06, or if its status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the ~~Depositor, the Originator~~ Depositor or the ~~Seller~~Originator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty. (f) Upon discovery or receipt of written notice of a breach by the Seller of any representation, warranty or covenant made by the Seller under the Assignment Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, and if either (i) such Mortgage Loan is not in breach of any representation, warranty or covenant of the Originator or (ii) the Originator has failed to remedy such representation, warranty or covenant with respect to such Mortgage Loan, then the Trustee shall enforce the obligation of the Seller to remedy such breach, to the extent provided in the Assignment Agreement, in the manner and within the time periods set forth in the Assignment Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt3)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any ~~representation,~~ representation or warranty under the Originator Mortgage Loan Purchase Agreement or ~~covenant under~~ the Mortgage Loan Purchase ~~Agreement (including any representation~~Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage ~~Loan~~ Loan, Prepayment Charge or the interest therein of the Certificateholders, the Trustee shall promptly notify the ~~Originator~~Originator or the Seller, as the ~~NIMS Insurer~~case may be, ~~the Seller~~ and the Master Servicer of such defect, missing document or breach and request ~~that~~ that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, ~~deliver such missing document or~~ cure such ~~defect or~~ breach within 90 days from the date the Originator or the Seller, as ~~applicable~~the case may be, was notified of such breach. If the Seller does not deliver such missing ~~document,~~ document or cure such defect or ~~breach, and~~ if the Originator or the Seller, as applicable, does not ~~deliver such missing document or~~ cure such ~~defect or~~ breach in all material respects during such period, the Trustee shall enforce the ~~obligations of~~ Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within 90 days after~~ on or prior to the ~~date on which~~ Determination Date following the ~~Originator or the Seller, as applicable, was notified~~ expiration of such period (subject to Section ~~2.03(c~~2.03(d)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be ~~remitted to the Servicer for deposit~~ deposited in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written ~~certification~~ notice from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as ~~applicable~~the case may be, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, ~~if so provided in the Mortgage Loan Purchase Agreement,~~ the Originator or the Seller, as ~~applicable~~the case may be, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a ~~Deleted~~ Defective Mortgage Loan) and substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(c)~~; provided~~. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, ~~however~~as applicable, or as to which the Originator or the Seller, as ~~applicable~~the case may be, ~~may not substitute~~ has no knowledge, if it is discovered by the Depositor, the Master Servicer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a ~~Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory~~ breach of the applicable representation or ~~abusive lending law~~warranty. It is understood and agreed that the ~~obligation~~ representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the ~~Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any~~ Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available Files to the Trustee and the ~~Certificateholders~~Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and to pay the Reimbursement Amount constitute the sole remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the representations and warranties contained in the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Section 3.01(k) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.03(i) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Master Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount. (b) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of any representation, warranty or covenant of the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Master Servicer shall cure such breach in all material respects. (c) Any substitution of ~~Qualified~~ Eligible Substitute Mortgage Loans for ~~Deleted~~ Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any ~~Deleted~~ Defective Mortgage Loan for which the Originator or the ~~Seller, as applicable,~~ Seller substitutes ~~a Qualified~~ an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee ~~(or the Custodian on behalf of the Trustee),~~ for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such ~~Qualified~~ Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor, the NIMS Insurer and the~~ Master Servicer, with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor, the NIMS Insurer and the~~ Master Servicer a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to ~~Qualified~~ Eligible Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such ~~Deleted~~ Defective Mortgage Loan ~~on or before the Due Date~~ in the ~~month~~ Collection Period or Prepayment Period, as applicable, preceding the date of ~~substitution~~substitution and the Depositor, ~~and~~ the Originator or the Seller, as ~~applicable~~the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such ~~Deleted~~ Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders ~~and the NIMS Insurer~~ that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such ~~Deleted~~ Defective Mortgage Loan from the terms of this Agreement and the substitution of the ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee~~, the Custodian, the Servicer and the NIMS Insurer~~. Upon such substitution, such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement ~~and~~ and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by the Originator or the Seller, all applicable representations and warranties thereof included in the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, as of the date of substitution. For any month in which the Originator or the ~~Seller, as applicable,~~ Seller substitutes one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for one or more ~~Deleted~~ Defective Mortgage Loans, the Master Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such ~~Deleted~~ Defective Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such ~~Qualified~~ Eligible Substitute Mortgage Loan, of the ~~Stated Principal Balance~~ principal balance thereof as of the date of substitution, together with one month's interest on such ~~Stated Principal Balance~~ principal balance at the applicable Net Mortgage Interest Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as ~~applicable~~the case may be, will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and ~~written~~ notice by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as ~~applicable~~the case may be, shall deliver to it and as shall be necessary to vest therein any ~~Deleted~~ Defective Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee ~~and the NIMS Insurer~~ an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(l) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(l) of the Code, or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (cd) Upon discovery by ~~the Depositor, the NIMS Insurer,~~ the Originator, the Seller, the Master Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Seller, as applicable, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(c), substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. ~~Such repurchase or substitution shall~~ In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause it to be ~~made by (i)~~ a "defective obligation" within the meaning of Treasury Regulations relating to REMICs, the Originator or the Seller, as the case may be, if shall cure the ~~affected Mortgage Loan's status as a non-qualified mortgage is~~ defect or ~~results from a breach~~ make the required purchase or substitution no later than 90 days after the discovery of ~~any representation, warranty or covenant made by~~ the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to ~~the Depositor,~~ the Originator or the Seller, as ~~the case may be~~applicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Asset Backed Funding Corp. ABFC Asset Backed Certificates Series 2004-Opt3)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the Originator, the ~~NIMS Insurer, the~~ Seller and the Servicer of such defect, missing document or breach and request that the Originator or the Seller, as applicable, deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Trustee~~ Servicer, to the extent it is not the Originator, the Seller or an Affiliate of the Seller, and otherwise the Trustee, in accordance with Section 3.02(b), shall enforce the obligations of the Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection Account and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant hereto. ~~In furtherance of the foregoing, if the Originator or the Seller, as applicable, is~~ The Trustee shall not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage ~~File~~File (it being understood that neither the Trustee nor the Custodian shall have any responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator ~~or the Seller, as applicable,~~ may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee (or the Custodian~~ Custodian, on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. ~~The~~ In accordance with the Custodial Agreement, the Trustee ~~(or~~ shall cause the Custodian ~~on behalf of the Trustee) shall~~ to acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and cause the Custodian to deliver to the Depositor, the ~~NIMS Insurer~~ Trustee and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, in accordance with the Custodial Agreement, the Trustee ~~(or~~ shall cause the Custodian ~~on behalf of the Trustee) shall~~ to deliver to the Depositor, the ~~NIMS Insurer~~ Trustee and the Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders ~~and the NIMS Insurer~~ that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee,~~ Trustee and the Custodian~~, the Servicer and the NIMS Insurer~~. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such ~~Stated~~ Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and upon receipt by the ~~Trustee (or the Custodian~~ Custodian, on behalf of the Trustee), ~~upon receipt~~ of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer to the Trustee of such deposit, the Trustee shall cause the Custodian to release as required by the Custodial Agreement to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee ~~and the NIMS Insurer~~ an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the ~~NIMS Insurer, the~~ Originator, the Seller, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the Depositor, the Originator or the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc Series 2005-Opt1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement ~~(including any representation, warranty or covenant regarding the Prepayment Charge Schedule)~~ in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall ~~promptly notify the Originator, the NIMS Insurer, the Seller and the Servicer of such defect, missing document or breach and~~ request that the Originator or the Seller, as applicable, deliver such missing document or that the Originator or the Seller, as applicable, cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or if the Originator or the Seller, as applicable, does not cure such defect or breach in all material respects during such period, the Trustee shall enforce the Originator's obligation under the Mortgage Loan Purchase Agreement and cause the Originator to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the Determination Date following the expiration of such 90 day period (subject to Section 2.03(e)). If the Originator or the Seller, as applicable fails to repurchase or substitute for such Mortgage Loan in accordance with its obligations of under the Mortgage Loan Purchase Agreement, the Trustee and the Depositor shall consult on further actions to be taken against the Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage ~~File~~File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above~~, if so provided in the Mortgage Loan Purchase Agreement~~, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(d); provided, however, neither the Originator or nor the Seller, as applicable, may ~~not~~ substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee ~~and~~ on behalf of the Certificateholders. (b) Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects. (c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of any representation, warranty or covenant of the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee (or the Custodian on behalf of the~~ Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage,~~ Mortgage and the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment ~~Amount~~ (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~ten Business Days~~ 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such Deleted Mortgage Loan ~~on or before~~ in the Due ~~Date in~~ Period preceding the month of ~~substitution,~~ substitution and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Servicer shall give or cause to be given written notice to the ~~Certificateholders and~~ Trustee, who shall forward such notice to the ~~NIMS Insurer~~ Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee~~, the Custodian, the Servicer and the NIMS Insurer~~. Upon such ~~substitution~~substitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, ~~including,~~ including all applicable representations and warranties thereof included in the Mortgage Loan Purchase ~~Agreement~~Agreement as of the date of substitution. For any month in which the Originator ~~or the Seller, as applicable,~~ substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "Substitution ~~Adjustment Amount~~Adjustment"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable ~~Net~~ Mortgage Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution ~~Adjustment Amount~~Adjustment, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee ~~and the NIMS Insurer~~ an Opinion of Counsel to the effect that such substitution will not cause (ai) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(I) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(I) of the ~~Code,~~ Code or (bii) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (ce) Upon discovery by the Depositor~~, the NIMS Insurer, the Originator, the Seller~~, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties ~~hereto and the Trustee shall give written notice to the Originator and the Seller~~hereto. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) by the Originator ~~or the Seller, as the case may be,~~ if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator ~~or the Seller, as the case may be,~~ under the Mortgage Loan Purchase ~~Agreement,~~ Agreement or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.06, or if its status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to the ~~Depositor, the Originator~~ Depositor or the ~~Seller~~Originator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Meritage Mortgage Loan Trust 2005-1 Asset-Backed Certificates, Series 2005-1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any ~~representation,~~ representation or warranty under the Originator Mortgage Loan Purchase Agreement or ~~covenant under~~ the Mortgage Loan Purchase ~~Agreement (including any representation~~Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage ~~Loan~~ Loan, Prepayment Charge or the interest therein of the Certificateholders, the Trustee shall promptly notify the ~~Originator~~Originator or the Seller, as the case may be, the ~~NIMS Insurer, the Seller~~ Master Servicer and the ~~Servicer~~ NIMS Insurer of such defect, missing document or breach and request ~~that~~ that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, ~~deliver such missing document or~~ cure such ~~defect or~~ breach within 90 days from the date the Originator or the Seller, as ~~applicable~~the case may be, was notified of such breach. If the Seller does not deliver such missing ~~document,~~ document or cure such defect or ~~breach, and~~ if the Originator or the Seller, as applicable, does not ~~deliver such missing document or~~ cure such ~~defect or~~ breach in all material respects during such period, the Trustee shall enforce the ~~obligations of~~ Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within 90 days after~~ on or prior to the ~~date on which~~ Determination Date following the ~~Originator or the Seller, as applicable, was notified~~ expiration of such period (subject to Section ~~2.03(c~~2.03(d)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be ~~remitted to the Servicer for deposit~~ deposited in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written ~~certification~~ notice from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as ~~applicable~~the case may be, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, ~~if so provided in the Mortgage Loan Purchase Agreement,~~ the Originator or the Seller, as ~~applicable~~the case may be, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a ~~Deleted~~ Defective Mortgage Loan) and substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(c)~~; provided~~. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, ~~however~~as applicable, or as to which the Originator or the Seller, as ~~applicable~~the case may be, ~~may not substitute~~ has no knowledge, if it is discovered by the Depositor, the Master Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a ~~Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory~~ breach of the applicable representation or ~~abusive lending law~~warranty. It is understood and agreed that the ~~obligation~~ representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the ~~Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any~~ Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available Files to the Trustee and the ~~Certificateholders~~Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and to pay the Reimbursement Amount constitute the sole remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the representations and warranties contained in the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Section 3.01(k) and 3.01(t) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.03(i) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) or 3.01(t) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Master Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount. (b) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of any representation, warranty or covenant of the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Master Servicer shall cure such breach in all material respects. (c) Any substitution of ~~Qualified~~ Eligible Substitute Mortgage Loans for ~~Deleted~~ Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any ~~Deleted~~ Defective Mortgage Loan for which the Originator or the ~~Seller, as applicable,~~ Seller substitutes ~~a Qualified~~ an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee ~~(or the Custodian on behalf of the Trustee),~~ for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such ~~Qualified~~ Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor,~~ Master Servicer and the NIMS ~~Insurer and the Servicer~~Insurer, with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor,~~ Master Servicer and the NIMS Insurer ~~and the Servicer~~ a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to ~~Qualified~~ Eligible Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such ~~Deleted~~ Defective Mortgage Loan ~~on or before the Due Date~~ in the ~~month~~ Collection Period or Prepayment Period, as applicable, preceding the date of ~~substitution~~substitution and the Depositor, ~~and~~ the Originator or the Seller, as ~~applicable~~the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such ~~Deleted~~ Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such ~~Deleted~~ Defective Mortgage Loan from the terms of this Agreement and the substitution of the ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee, the Custodian, the Servicer~~ Trustee and the NIMS Insurer. Upon such substitution, such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement ~~and~~ and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by the Originator or the Seller, all applicable representations and warranties thereof included in the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, as of the date of substitution. For any month in which the Originator or the ~~Seller, as applicable,~~ Seller substitutes one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for one or more ~~Deleted~~ Defective Mortgage Loans, the Master Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such ~~Deleted~~ Defective Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such ~~Qualified~~ Eligible Substitute Mortgage Loan, of the ~~Stated Principal Balance~~ principal balance thereof as of the date of substitution, together with one month's interest on such ~~Stated Principal Balance~~ principal balance at the applicable Net Mortgage Interest Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as ~~applicable~~the case may be, will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and ~~written~~ notice by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as ~~applicable~~the case may be, shall deliver to it and as shall be necessary to vest therein any ~~Deleted~~ Defective Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(l) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(l) of the Code, or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (cd) Upon discovery by ~~the Depositor, the NIMS Insurer,~~ the Originator, the Seller, the ~~Servicer~~ Master Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Seller, as applicable, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(c), substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. ~~Such repurchase or substitution shall~~ In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause it to be ~~made by (i)~~ a "defective obligation" within the meaning of Treasury Regulations relating to REMICs, the Originator or the Seller, as the case may be, if shall cure the ~~affected Mortgage Loan's status as a non-qualified mortgage is~~ defect or ~~results from a breach~~ make the required purchase or substitution no later than 90 days after the discovery of ~~any representation, warranty or covenant made by~~ the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to ~~the Depositor,~~ the Originator or the Seller, as ~~the case may be~~applicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Asset-Backed Funding Corp. ABFC Asset Backed Certificates, Series 2004-Opt4)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the Originator, the NIMS Insurer, the Seller and the Master Servicer of such defect, missing document or breach and request that the Originator or the Seller, as applicable, deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Trustee~~ Master Servicer, to the extent it is not the Originator, the Seller or an Affiliate of the Seller, and otherwise the Trustee, in accordance with Section 3.02(b), shall enforce the obligations of the Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Master Servicer for deposit in the Collection Account and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant hereto. ~~In furtherance of the foregoing, if the Originator or the Seller, as applicable, is~~ The Trustee shall not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator ~~or the Seller, as applicable,~~ may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee (or the Custodian on behalf of the~~ Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Depositor, the NIMS Insurer and the Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the Depositor, the NIMS Insurer and the Master Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee, the Custodian, the Servicer~~ Trustee and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the ~~Stated~~ Principal Balance thereof as of the date of substitution, together with one month's interest on such ~~Stated~~ Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, the Master Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall ~~reconvey~~ re-convey to the Depositor, the Originator or the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Asset Securitization Transactions, Inc. Mortgage Pass-Through Certificates, Series 2004-0pt2)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement or the Assignment Agreement, as applicable, (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee (who shall have received notice from the Custodian) shall promptly notify the Originator, the NIMS Insurer, the ~~Seller~~ Seller, the Servicer and the Master Servicer of such defect, missing document or breach and request that the Originator or the Seller, as applicable, deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of the Originator or the Seller, as applicable, under the ~~Mortgage Loan Purchase~~ Master Agreement or the Assignment Agreement, as applicable, to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the ~~Mortgage Loan Purchase~~ Master Agreement or the Assignment Agreement, as applicable. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Master Servicer for deposit in into the ~~Collection~~ Distribution Account and the ~~Trustee (or the Custodian on behalf of the Trustee)~~Custodian, upon receipt of written ~~certification~~ notice from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS(R)~~ MERS® System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the ~~MERS(R)~~ MERS® System in accordance with MERS' ’ rules and regulations. ~~Neither the Trustee nor the~~ The Custodian shall not have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the ~~Mortgage Loan Purchase~~ Master Agreement or the Assignment Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee (or the~~ Custodian ~~on behalf of the Trustee),~~ for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The ~~Trustee (or the~~ Custodian ~~on behalf of the Trustee)~~ shall acknowledge receipt ~~for~~ of such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Depositor, the NIMS ~~Insurer~~ Insurer, the Servicer and the Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the ~~Trustee (or the~~ Custodian ~~on behalf of the Trustee)~~ shall deliver to the Depositor, the NIMS ~~Insurer~~ Insurer, the Servicer and the Master Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~Master Servicer, the Trust Administrator, the Custodian, the Servicer and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the ~~Mortgage Loan Purchase~~ Master Agreement or the Assignment Agreement, as applicable, including, all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase~~ Master Agreement or the Assignment Agreement, as applicable. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will monitor the obligation of the Servicer, to the extent provided in the Master Agreement, to determine the amount (the "“Substitution Adjustment Amount"”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. If the Master Agreement does not require the Servicer to determine the Substitution Adjustment Amount, the Master Servicer, based on information provided to it by the Servicer, shall determine the Substitution Adjustment Amount. Upon receipt of the Servicer’s determination of the Substitution Adjustment Amount or upon determination by the Master Servicer of the Substitution Adjustment Amount, the Master Servicer shall give prompt written notice thereof to the Trust Administrator. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Master Servicer for deposit in the ~~Collection~~ Distribution Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the Trustee)~~Custodian, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and written notice by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, to the Originator or the Seller, as applicable, ~~shall deliver to it and~~ as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the ~~Trustee~~ Trustee, the Trust Administrator and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section 860F(a)(1) of the Code or on "“contributions after the startup date" ” under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, the ~~Servicer~~ Master Servicer, the Trust Administrator or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties hereto and the Trustee shall give written notice to the Originator and the Seller. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or the Seller, as the case may be, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or the Seller, as the case may be, under the ~~Mortgage Loan Purchase~~ Master Agreement or the Assignment Agreement, as applicable, or (ii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The ~~Trustee (or the~~ Custodian ~~on behalf of the Trustee)~~ shall reconvey to the Depositor, the Originator or the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2005-Wf1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the ~~Seller~~ Seller, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement ~~(including any representation~~or the Assignment Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the ~~Originator~~Originator or the Seller, ~~the NIMS Insurer~~as applicable, ~~the Seller and the Servicer~~ of such defect, missing document or breach and request that the Originator ~~or the Seller, as applicable,~~ deliver such missing document or cure such defect or that the Originator or the Seller, as applicable, cure such breach within 90 120 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator ~~or the Seller, as applicable,~~ does not deliver such missing document or cure such defect or if the Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce the ~~obligations of~~ Originator's obligation under the Master Agreement or the Seller's obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ of its obligation to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price on or prior to the Determination Date following the expiration of such 120 day period (subject to Section 2.03(e)); provided that, in connection with any such breach that could not reasonably have been cured within ~~90 days after the date on which~~ such 120 day period, if the Originator or the Seller, as applicable, ~~was notified (subject~~ has commenced to ~~Section 2.03(c)) of~~ cure such ~~missing document~~breach within such 120 day period, ~~defect or breach, if and to the extent that~~ the Originator or the Seller, as applicable, ~~is obligated~~ shall be permitted to ~~do so~~ proceed thereafter diligently and expeditiously to cure the same within the additional period provided under the Assignment Agreement. Notwithstanding the foregoing, to the extent of a breach by the Originator and the Seller of any representation, warranty or covenant under the Assignment Agreement in respect of any Mortgage Loan ~~Purchase Agreement~~which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall first request that the Originator cure such breach or repurchase such Mortgage Loan and if the Originator fails to cure such breach or repurchase such Mortgage Loan within 60 days of receipt of such request from the Trustee, the Trustee shall then request that the Seller cure such breach or repurchase such Mortgage Loan. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage ~~File~~File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above~~, if so provided in the Mortgage Loan Purchase Agreement~~, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(d); provided, however, the Originator or the Seller, as applicable, may not substitute ~~a Qualified Substitute~~ for any Mortgage Loan ~~for any Deleted Mortgage Loan that violates any~~ which breaches a representation or warranty regarding abusive or predatory ~~or abusive~~ lending ~~law~~laws. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee ~~and~~ on behalf of the Certificateholders. (b) Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects. (c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of any representation, warranty or covenant of the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee (or the Custodian on behalf of the~~ Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage,~~ Mortgage and the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment ~~Amount~~ (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~ten Business Days~~ 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such Deleted Mortgage Loan ~~on or before~~ in the Due ~~Date in~~ Period preceding the month of ~~substitution,~~ substitution and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator or the Seller, as applicable, shall give or cause to be given written notice to the ~~Certificateholders and~~ Trustee, who shall forward such notice to the ~~NIMS Insurer~~ Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee~~, the Custodian, the Servicer and the NIMS Insurer~~. Upon such ~~substitution~~substitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the ~~Mortgage Loan Purchase~~ Assignment Agreement, ~~including,~~ including all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase Agreement~~Assignment Agreement as of the date of substitution. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "Substitution ~~Adjustment Amount~~Adjustment"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable ~~Net~~ Mortgage Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution ~~Adjustment Amount~~Adjustment, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee ~~and the NIMS Insurer~~ an Opinion of Counsel to the effect that such substitution will not ~~cause~~ cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(I) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(I) of the ~~Code,~~ Code or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (ce) Upon discovery by the Depositor~~, the NIMS Insurer, the Originator, the Seller~~, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties ~~hereto and the Trustee shall give written notice to the Originator and the Seller~~hereto. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) by the Originator ~~or the Seller, as the case may be,~~ if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator ~~or the Seller, as the case may be,~~ under the ~~Mortgage Loan Purchase Agreement,~~ Assignment Agreement or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.06, or if its status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to the ~~Depositor, the Originator~~ Depositor or the ~~Seller~~Originator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chec Loan Trust 2004-1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the ~~Trustee~~ Trust Administrator shall promptly notify the Originator, the NIMS Insurer, the ~~Seller~~ Seller, the Servicer and the Master Servicer of such defect, missing document or breach and request that the Originator or the Seller, as applicable, deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of the Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Master Servicer for deposit in into the ~~Collection~~ Distribution Account and the ~~Trustee~~ Trust Administrator (~~or the Custodian on behalf of the Trustee~~in its capacity as Custodian), upon receipt of written ~~certification~~ notice from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. ~~Neither the Trustee nor the Custodian~~ The Trust Administrator shall not have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee (or the Custodian on behalf of the Trustee)~~Custodian, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The ~~Trustee~~ Trust Administrator (~~or the Custodian on behalf of the Trustee~~in its capacity as Custodian) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Depositor, the NIMS ~~Insurer~~ Insurer, the Servicer and the Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the ~~Trustee~~ Trust Administrator (~~or the Custodian on behalf of the Trustee~~in its capacity as Custodian) shall deliver to the Depositor, the NIMS ~~Insurer~~ Insurer, the Servicer and the Master Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~Master Servicer, the ~~Custodian, the Servicer~~ Trust Administrator and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will monitor the obligation of the Servicer, to the extent provided in the Servicing Agreement, to determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. If the Servicing Agreement does not require the Servicer to determine the Substitution Adjustment Amount, the Master Servicer, based on information provided to it by the Servicer, shall determine the Substitution Adjustment Amount. Upon receipt of the Servicer's determination of the Substitution Adjustment Amount or upon determination by the Master Servicer of the Substitution Adjustment Amount, the Master Servicer shall give prompt written notice thereof to the Trust Administrator. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Master Servicer for deposit in the ~~Collection~~ Distribution Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee~~ Trust Administrator (~~or the Custodian on behalf of the Trustee~~in its capacity as Custodian), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and written notice by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the ~~Trustee~~ Trustee, the Trust Administrator and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, the ~~Servicer~~ Master Servicer, the Trust Administrator or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties hereto and the Trustee shall give written notice to the Originator and the Seller. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to the Depositor, the Originator or the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Asset Sec Trans Inc Mastr as Bk Sec Tr 2004 Wmc1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any ~~representation,~~ representation or warranty under the Originator Mortgage Loan Purchase Agreement or ~~covenant under~~ the Mortgage Loan Purchase ~~Agreement (including any representation~~Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage ~~Loan~~ Loan, Prepayment Charge or the interest therein of the Certificateholders, the Trustee shall promptly notify the ~~Originator~~Originator or the Seller, as the case may be, the ~~NIMS Insurer, the Seller~~ Master Servicer and the ~~Servicer~~ NIMS Insurer of such defect, missing document or breach and request ~~that~~ that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, ~~deliver such missing document or~~ cure such ~~defect or~~ breach within 90 days from the date the Originator or the Seller, as ~~applicable~~the case may be, was notified of such breach. If the Seller does not deliver such missing ~~document,~~ document or cure such defect or ~~breach, and~~ if the Originator or the Seller, as applicable, does not ~~deliver such missing document or~~ cure such ~~defect or~~ breach in all material respects during such period, the Trustee shall enforce the ~~obligations of~~ Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within 90 days after~~ on or prior to the ~~date on which~~ Determination Date following the ~~Originator or the Seller, as applicable, was notified~~ expiration of such period (subject to Section ~~2.03(c~~2.03(d)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be ~~remitted to the Servicer for deposit~~ deposited in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written ~~certification~~ notice from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as ~~applicable~~the case may be, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, ~~if so provided in the Mortgage Loan Purchase Agreement,~~ the Originator or the Seller, as ~~applicable~~the case may be, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a ~~Deleted~~ Defective Mortgage Loan) and substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(c)~~; provided~~. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, ~~however~~as applicable, or as to which the Originator or the Seller, as ~~applicable~~the case may be, ~~may not substitute~~ has no knowledge, if it is discovered by the Depositor, the Master Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a ~~Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory~~ breach of the applicable representation or ~~abusive lending law~~warranty. It is understood and agreed that the ~~obligation~~ representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the Mortgage Files to the Trustee and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the ~~Seller~~Mortgage Loan Purchase Agreement, as applicable, and to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole ~~remedy respecting such omission, defect or breach~~ remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the representations and warranties contained in the ~~Certificateholders~~Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws and "high cost" loans in Sections 3.01(k) and (l) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.03(i) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Master Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount. (b) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of any representation, warranty or covenant of the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Master Servicer shall cure such breach in all material respects. (c) Any substitution of ~~Qualified~~ Eligible Substitute Mortgage Loans for ~~Deleted~~ Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any ~~Deleted~~ Defective Mortgage Loan for which the Originator or the ~~Seller, as applicable,~~ Seller substitutes ~~a Qualified~~ an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee ~~(or the Custodian on behalf of the Trustee),~~ for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such ~~Qualified~~ Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor,~~ Master Servicer and the NIMS ~~Insurer and the Servicer~~Insurer, with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor,~~ Master Servicer and the NIMS Insurer ~~and the Servicer~~ a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to ~~Qualified~~ Eligible Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such ~~Deleted~~ Defective Mortgage Loan ~~on or before the Due Date~~ in the ~~month~~ Collection Period or Prepayment Period, as applicable, preceding the date of ~~substitution~~substitution and the Depositor, ~~and~~ the Originator or the Seller, as ~~applicable~~the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such ~~Deleted~~ Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such ~~Deleted~~ Defective Mortgage Loan from the terms of this Agreement and the substitution of the ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee, the Custodian, the Servicer~~ Trustee and the NIMS Insurer. Upon such substitution, such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement ~~and~~ and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by the Originator or the Seller, all applicable representations and warranties thereof included in the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, as of the date of substitution. For any month in which the Originator or the ~~Seller, as applicable,~~ Seller substitutes one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for one or more ~~Deleted~~ Defective Mortgage Loans, the Master Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such ~~Deleted~~ Defective Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such ~~Qualified~~ Eligible Substitute Mortgage Loan, of the ~~Stated Principal Balance~~ principal balance thereof as of the date of substitution, together with one month's interest on such ~~Stated Principal Balance~~ principal balance at the applicable Net Mortgage Interest Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as ~~applicable~~the case may be, will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and ~~written~~ notice by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as ~~applicable~~the case may be, shall deliver to it and as shall be necessary to vest therein any ~~Deleted~~ Defective Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(l) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(l) of the Code, or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (cd) Upon discovery by ~~the Depositor, the NIMS Insurer,~~ the Originator, the Seller, the ~~Servicer~~ Master Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Seller, as applicable, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(c), substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. ~~Such repurchase or substitution shall~~ In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause it to be ~~made by (i)~~ a "defective obligation" within the meaning of Treasury Regulations relating to REMICs, the Originator or the Seller, as the case may be, if shall cure the ~~affected Mortgage Loan's status as a non-qualified mortgage is~~ defect or ~~results from a breach~~ make the required purchase or substitution no later than 90 days after the discovery of ~~any representation, warranty or covenant made by~~ the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to ~~the Depositor,~~ the Originator or the Seller, as ~~the case may be~~applicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt2)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any ~~representation,~~ representation or warranty ~~or covenant~~ under the Mortgage Loan Sale Agreement or the Mortgage Loan Purchase ~~Agreement (including any representation~~Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage ~~Loan~~ Loan, Prepayment Charge or the interest therein of the Certificateholders, the Trustee shall promptly notify the ~~Originator~~Originator or the Seller, as the case may be, the ~~NIMS Insurer, the Seller~~ Servicer and the ~~Servicer~~ NIMS Insurer of such defect, missing document or breach and request ~~that~~ that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, ~~deliver such missing document or~~ cure such ~~defect or~~ breach within 90 days from the date the Originator or the Seller, as ~~applicable~~the case may be, was notified of such breach. Notwithstanding the foregoing, any breach of a Deemed Material and Adverse Representation with respect to a Group 1 Mortgage Loan or Group 2 Mortgage Loan shall automatically be deemed to materially and adversely affect such Mortgage Loan or the interest of the related Certificateholders therein. If the Seller does not deliver such missing ~~document,~~ document or cure such defect or ~~breach, and~~ if the Originator or the Seller, as applicable, does not ~~deliver such missing document or~~ cure such ~~defect or~~ breach in all material respects during such period, the Trustee shall enforce the ~~obligations of~~ Originator’s or the Seller’s obligation, as the case may be, under the Mortgage Loan Sale Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within 90 days after~~ on or prior to the ~~date on which~~ Determination Date following the ~~Originator or the Seller, as applicable, was notified~~ expiration of such period (subject to Section ~~2.03(c~~2.03(d)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be ~~remitted to the Servicer for deposit~~ deposited in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written ~~certification~~ notice from the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as ~~applicable~~the case may be, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, ~~if so provided in the Mortgage Loan Purchase Agreement,~~ the Originator or the Seller, as ~~applicable~~the case may be, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a ~~Deleted~~ Defective Mortgage Loan) and substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(c)~~; provided~~. With respect to the representations and warranties set forth in the Mortgage Loan Sale Agreement or the Mortgage Loan Purchase Agreement that are made to the best of the Originator’s or the Seller’s knowledge, ~~however~~as applicable, or as to which the Originator or the Seller, as ~~applicable~~the case may be, ~~may not substitute~~ has no knowledge, if it is discovered by the Depositor, the Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator’s or the Seller’s lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a ~~Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory~~ breach of the applicable representation or ~~abusive lending law~~warranty. It is understood and agreed that the ~~obligation~~ representations and warranties set forth in the Mortgage Loan Sale Agreement or the Mortgage Loan Purchase Agreement shall survive delivery of the ~~Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any~~ Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available Files to the Trustee and the ~~Certificateholders~~Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Mortgage Loan Sale Agreement or the Mortgage Loan Purchase Agreement, as applicable, and to pay the Reimbursement Amount constitute the sole remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the representations and warranties contained in the Mortgage Loan Sale Agreement and the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Mortgage Loan Sale Agreement, which have been assigned to the Trustee hereunder, were made as of August 31, 2006, September 15, 2006 and September 21, 2006. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Mortgage Loan Sale Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller’s representations with respect to predatory and abusive lending laws in Section 3.01(xi) and 3.01(xix) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee’s right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Mortgage Loan Sale Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator’s representation with respect to predatory and abusive lending laws in Section 3.03(i) or 3.03(ddd) of the Mortgage Loan Sale Agreement and (y) the Seller’s representation with respect to predatory and abusive lending laws in Section 3.01(xi) or 3.01(xix) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller’s obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount. (b) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of any representation, warranty or covenant of the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (c) Any substitution of ~~Qualified~~ Eligible Substitute Mortgage Loans for ~~Deleted~~ Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any ~~Deleted~~ Defective Mortgage Loan for which the Originator or the ~~Seller, as applicable,~~ Seller substitutes ~~a Qualified~~ an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee ~~(or the Custodian on behalf of the Trustee),~~ for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such ~~Qualified~~ Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor,~~ Servicer and the NIMS ~~Insurer and the Servicer~~Insurer, with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor,~~ Servicer and the NIMS Insurer ~~and the Servicer~~ a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to ~~Qualified~~ Eligible Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such ~~Deleted~~ Defective Mortgage Loan ~~on or before the Due Date~~ in the ~~month~~ Collection Period or Prepayment Period, as applicable, preceding the date of ~~substitution~~substitution and the Depositor, ~~and~~ the Originator or the Seller, as ~~applicable~~the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such ~~Deleted~~ Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such ~~Deleted~~ Defective Mortgage Loan from the terms of this Agreement and the substitution of the ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee, the Custodian, the Servicer~~ Trustee and the NIMS Insurer. Upon such substitution, such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement ~~and~~ and, in the case of a substitution effected by the Originator or the Seller, the Mortgage Loan Sale Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by the Originator or the Seller, all applicable representations and warranties thereof included in the Mortgage Loan Sale Agreement and, in the case of a substitution effected by the Seller, the Mortgage Loan Purchase Agreement, as of the date of substitution. For any month in which the Originator or the ~~Seller, as applicable,~~ Seller substitutes one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for one or more ~~Deleted~~ Defective Mortgage Loans, the Servicer will determine the amount (the "“Substitution Adjustment Amount"”), if any, by which the aggregate Purchase Price of all such ~~Deleted~~ Defective Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such ~~Qualified~~ Eligible Substitute Mortgage Loan, of the ~~Stated Principal Balance~~ principal balance thereof as of the date of substitution, together with one month's ’s interest on such ~~Stated Principal Balance~~ principal balance at the applicable Net Mortgage Interest Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as ~~applicable~~the case may be, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and ~~written~~ notice by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as ~~applicable~~the case may be, shall deliver to it and as shall be necessary to vest therein any ~~Deleted~~ Defective Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section ~~860F(a)(1~~860F(a)(l) of the Code or on "“contributions after the startup date" ” under Section ~~860G(d)(1~~860G(d)(l) of the Code, or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (cd) Upon discovery by ~~the Depositor, the NIMS Insurer,~~ the Originator, the Seller, the ~~Servicer~~ Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Seller, as applicable, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(c), substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. ~~Such repurchase or substitution shall~~ In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause it to be ~~made by (i)~~ a “defective obligation” within the meaning of Treasury regulations relating to REMICs, the Originator or the Seller, as the case may be, if shall cure the ~~affected Mortgage Loan's status as a non-qualified mortgage is~~ defect or ~~results from a breach~~ make the required purchase or substitution no later than 90 days after the discovery of ~~any representation, warranty or covenant made by~~ the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to ~~the Depositor,~~ the Originator or the Seller, as ~~the case may be~~applicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty. (e) If a Mortgagor is forty-five (45) days or more delinquent with respect to a Mortgage Loan’s first Monthly Payment that was due the Seller after its initial purchase under the Mortgage Loan Sale Agreement, the Servicer shall repurchase such Mortgage Loan at the purchase price set forth in the Mortgage Loan Sale Agreement plus accrued and unpaid interest thereon from the date to which interest was last paid through the last day of the month in which such repurchase takes place at the applicable Mortgage Loan Remittance Rate (as such term is defined in the Mortgage Loan Sale Agreement); provided, however, the Servicer’s obligation to repurchase any such Mortgage Loan pursuant to this paragraph shall expire 150 days following the related Closing Date (as such term is defined in the Mortgage Loan Sale Agreement).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ABFC 2006-Opt2 Trust)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Meritage Mortgage Loan Trust 2004 1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any ~~representation,~~ representation or warranty under the Originator Mortgage Loan Purchase Agreement or ~~covenant under~~ the Mortgage Loan Purchase ~~Agreement (including any representation~~Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage ~~Loan~~ Loan, Prepayment Charge or the interest therein of the Certificateholders, the Trustee shall promptly notify the ~~Originator~~Originator or the Seller, as the case may be, the ~~NIMS Insurer, the Seller~~ Master Servicer and the ~~Servicer~~ NIMS Insurer of such defect, missing document or breach and request ~~that~~ that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, ~~deliver such missing document or~~ cure such ~~defect or~~ breach within 90 days from the date the Originator or the Seller, as ~~applicable~~the case may be, was notified of such breach. If the Seller does not deliver such missing ~~document,~~ document or cure such defect or ~~breach, and~~ if the Originator or the Seller, as applicable, does not ~~deliver such missing document or~~ cure such ~~defect or~~ breach in all material respects during such period, the Trustee shall enforce the ~~obligations of~~ Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within 90 days after~~ on or prior to the ~~date on which~~ Determination Date following the ~~Originator or the Seller, as applicable, was notified~~ expiration of such period (subject to Section ~~2.03(c~~2.03(d)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be ~~remitted to the Servicer for deposit~~ deposited in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written ~~certification~~ notice from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as ~~applicable~~the case may be, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, ~~if so provided in the Mortgage Loan Purchase Agreement,~~ the Originator or the Seller, as ~~applicable~~the case may be, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a ~~Deleted~~ Defective Mortgage Loan) and substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(c)~~; provided~~. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, ~~however~~as applicable, or as to which the Originator or the Seller, as ~~applicable~~the case may be, ~~may not substitute~~ has no knowledge, if it is discovered by the Depositor, the Master Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a ~~Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory~~ breach of the applicable representation or ~~abusive lending law~~warranty. It is understood and agreed that the ~~obligation~~ representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the ~~Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any~~ Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available Files to the Trustee and the ~~Certificateholders~~Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and to pay the Reimbursement Amount constitute the sole remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the representations and warranties contained in the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Section 3.01(k) and 3.01(t) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.03(i) or 3.03(ddd) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) or 3.01(t) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Master Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount. (b) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of any representation, warranty or covenant of the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Master Servicer shall cure such breach in all material respects. (c) Any substitution of ~~Qualified~~ Eligible Substitute Mortgage Loans for ~~Deleted~~ Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any ~~Deleted~~ Defective Mortgage Loan for which the Originator or the ~~Seller, as applicable,~~ Seller substitutes ~~a Qualified~~ an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee ~~(or the Custodian on behalf of the Trustee),~~ for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such ~~Qualified~~ Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor,~~ Master Servicer and the NIMS ~~Insurer and the Servicer~~Insurer, with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor,~~ Master Servicer and the NIMS Insurer ~~and the Servicer~~ a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to ~~Qualified~~ Eligible Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such ~~Deleted~~ Defective Mortgage Loan ~~on or before the Due Date~~ in the ~~month~~ Collection Period or Prepayment Period, as applicable, preceding the date of ~~substitution~~substitution and the Depositor, ~~and~~ the Originator or the Seller, as ~~applicable~~the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such ~~Deleted~~ Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such ~~Deleted~~ Defective Mortgage Loan from the terms of this Agreement and the substitution of the ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee, the Custodian, the Servicer~~ Trustee and the NIMS Insurer. Upon such substitution, such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement ~~and~~ and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by the Originator or the Seller, all applicable representations and warranties thereof included in the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, as of the date of substitution. For any month in which the Originator or the ~~Seller, as applicable,~~ Seller substitutes one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for one or more ~~Deleted~~ Defective Mortgage Loans, the Master Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such ~~Deleted~~ Defective Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such ~~Qualified~~ Eligible Substitute Mortgage Loan, of the ~~Stated Principal Balance~~ principal balance thereof as of the date of substitution, together with one month's interest on such ~~Stated Principal Balance~~ principal balance at the applicable Net Mortgage Interest Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as ~~applicable~~the case may be, will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and ~~written~~ notice by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as ~~applicable~~the case may be, shall deliver to it and as shall be necessary to vest therein any ~~Deleted~~ Defective Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(l) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(l) of the Code, or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (cd) Upon discovery by ~~the Depositor, the NIMS Insurer,~~ the Originator, the Seller, the ~~Servicer~~ Master Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Seller, as applicable, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(c), substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. ~~Such repurchase or substitution shall~~ In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause it to be ~~made by (i)~~ a "defective obligation" within the meaning of Treasury Regulations relating to REMICs, the Originator or the Seller, as the case may be, if shall cure the ~~affected Mortgage Loan's status as a non-qualified mortgage is~~ defect or ~~results from a breach~~ make the required purchase or substitution no later than 90 days after the discovery of ~~any representation, warranty or covenant made by~~ the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to ~~the Depositor,~~ the Originator or the Seller, as ~~the case may be~~applicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Asset-Backed Funding Corp. ABFC Asset Backed Certificates, Series 2004-Opt5)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement ~~(including any representation~~or the Assignment Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee (or the Custodian on its behalf) shall promptly notify the ~~Originator, the~~ NIMS ~~Insurer, the Seller~~ Insurer and the Servicer of such defect, missing document or breach and the Servicer shall request that the Originator deliver such missing document or that the Originator or the ~~Seller, as applicable, deliver such missing document or~~ Seller cure such defect or breach within 90 days from the date the Originator or the ~~Seller, as applicable,~~ Seller was notified of such missing document, defect or breach, and if the Originator or the ~~Seller, as applicable,~~ Seller does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Trustee~~ Servicer shall use commercially reasonable efforts to attempt to enforce the ~~obligations of~~ Originator’s obligation under the Master Agreement or the Seller’s obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ of its obligation to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within~~ on or prior to the Determination Date following the expiration of such 90 ~~days after~~ day period (subject to Section 2.03(e)); provided, however, that the ~~date on~~ Servicer shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Servicer in enforcing any obligations of the Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the Master Agreement or the Seller’s obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable~~, was notified~~ ,. of its obligation to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the Determination Date following the expiration of such 90 day period (subject to Section ~~2.03(c~~2.03(e)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection ~~Account~~ Account, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant ~~hereto~~hereto and the Trustee shall have no further responsibility with regard to such Mortgage File (it being understood that neither the Trustee nor the Custodian shall have any responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(d); provided, however, the Originator or the Seller, as applicable,may not substitute for any Mortgage Loan which breaches a representation or warranty regarding abusive or predatory lending laws. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS(R)~~ MERS® System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the ~~MERS(R)~~ MERS® System in accordance with MERS' ’ rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee ~~and~~ on behalf of the Certificateholders. (b) Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects. (c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of any representation, warranty or covenant of the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage,~~ Mortgage and the Assignment ~~in blank or~~ to the ~~Trustee~~Trustee in blank, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment ~~Amount~~ (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~ten Business Days~~ 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver to the Depositor, the NIMS Insurer and the Servicer~~deliver, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1 (with a copy to the NIMS Insurer), with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the ~~Depositor, the NIMS Insurer and the~~ Servicer a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto (with a copy to the NIMS Insurer) with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable,. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such Deleted Mortgage Loan ~~on or before~~ in the Due ~~Date in~~ Period preceding the month of ~~substitution,~~ substitution and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the ~~Certificateholders~~ NIMS Insurer and the ~~NIMS Insurer~~ Trustee, who shall forward such notice to the Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee, the Custodian, the Servicer~~ NIMS Insurer and the ~~NIMS Insurer~~Trustee. Upon such ~~substitution~~substitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the ~~Mortgage Loan Purchase~~ Assignment Agreement, ~~including,~~ including all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase Agreement~~Assignment Agreement as of the date of substitution. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "“Substitution ~~Adjustment Amount"~~Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable ~~Net~~ Mortgage Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution ~~Adjustment Amount~~Adjustment, if any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, pursuant to the terms of the Assignment Agreement, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section ~~860F(a)(1~~860F(a)(I) of the Code or on "“contributions after the startup date" ” under Section ~~860G(d)(1~~860G(d)(I) of the ~~Code,~~ Code or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (ce) Upon discovery by the Depositor, the ~~NIMS Insurer~~Servicer, the ~~Originator, the Seller, the Servicer~~ NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties ~~hereto and the Trustee shall give written notice to the Originator and the Seller~~hereto. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) by the Originator ~~or the Seller, as the case may be,~~ if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator ~~or the Seller, as the case may be,~~ under the ~~Mortgage Loan Purchase Agreement,~~ Assignment Agreement or (ii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.06, or if its status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the ~~Depositor, the Originator~~ Depositor or the ~~Seller~~Originator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty. (f) Upon discovery or receipt of written notice of a breach by the Seller of any representation, warranty or covenant made by the Seller under the Assignment Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, and if either (i) such Mortgage Loan is not in breach of any representation, warranty or covenant of the Originator or (ii) the Originator has failed to remedy such representation, warranty or covenant with respect to such Mortgage Loan, then the Trustee shall enforce the obligation of the Seller to remedy such breach, to the extent provided in the Assignment Agreement, in the manner and within the time periods set forth in the Assignment Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2006-1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any ~~representation,~~ representation or warranty under the Originator Mortgage Loan Purchase Agreement or ~~covenant under~~ the Mortgage Loan Purchase ~~Agreement (including any representation~~Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage ~~Loan~~ Loan, Prepayment Charge or the interest therein of the Certificateholders, the Trustee shall promptly notify the ~~Originator~~Originator or the Seller, as the case may be, the ~~NIMS Insurer, the Seller~~ Master Servicer and the ~~Servicer~~ NIMS Insurer of such defect, missing document or breach and request ~~that~~ that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, ~~deliver such missing document or~~ cure such ~~defect or~~ breach within 90 days from the date the Originator or the Seller, as ~~applicable~~the case may be, was notified of such breach. If the Seller does not deliver such missing ~~document,~~ document or cure such defect or ~~breach, and~~ if the Originator or the Seller, as applicable, does not ~~deliver such missing document or~~ cure such ~~defect or~~ breach in all material respects during such period, the Trustee shall enforce the ~~obligations of~~ Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within 90 days after~~ on or prior to the ~~date on which~~ Determination Date following the ~~Originator or the Seller, as applicable, was notified~~ expiration of such period (subject to Section ~~2.03(c~~2.03(d)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be ~~remitted to the Servicer for deposit~~ deposited in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written ~~certification~~ notice from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as ~~applicable~~the case may be, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, ~~if so provided in the Mortgage Loan Purchase Agreement,~~ the Originator or the Seller, as ~~applicable~~the case may be, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a ~~Deleted~~ Defective Mortgage Loan) and substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(c)~~; provided~~. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, ~~however~~as applicable, or as to which the Originator or the Seller, as ~~applicable~~the case may be, ~~may not substitute~~ has no knowledge, if it is discovered by the Depositor, the Master Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a ~~Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory~~ breach of the applicable representation or ~~abusive lending law~~warranty. It is understood and agreed that the ~~obligation~~ representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the ~~Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any~~ Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available Files to the Trustee and the ~~Certificateholders~~Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and to pay the Reimbursement Amount constitute the sole remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the representations and warranties contained in the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Section 3.01(k) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.03(i) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Master Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount. (b) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of any representation, warranty or covenant of the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Master Servicer shall cure such breach in all material respects. (c) Any substitution of ~~Qualified~~ Eligible Substitute Mortgage Loans for ~~Deleted~~ Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any ~~Deleted~~ Defective Mortgage Loan for which the Originator or the ~~Seller, as applicable,~~ Seller substitutes ~~a Qualified~~ an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee ~~(or the Custodian on behalf of the Trustee),~~ for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such ~~Qualified~~ Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor,~~ Master Servicer and the NIMS ~~Insurer and the Servicer~~Insurer, with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor,~~ Master Servicer and the NIMS Insurer ~~and the Servicer~~ a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to ~~Qualified~~ Eligible Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such ~~Deleted~~ Defective Mortgage Loan ~~on or before the Due Date~~ in the ~~month~~ Collection Period or Prepayment Period, as applicable, preceding the date of ~~substitution~~substitution and the Depositor, ~~and~~ the Originator or the Seller, as ~~applicable~~the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such ~~Deleted~~ Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such ~~Deleted~~ Defective Mortgage Loan from the terms of this Agreement and the substitution of the ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee, the Custodian, the Servicer~~ Trustee and the NIMS Insurer. Upon such substitution, such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement ~~and~~ and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by the Originator or the Seller, all applicable representations and warranties thereof included in the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, as of the date of substitution. For any month in which the Originator or the ~~Seller, as applicable,~~ Seller substitutes one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for one or more ~~Deleted~~ Defective Mortgage Loans, the Master Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such ~~Deleted~~ Defective Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such ~~Qualified~~ Eligible Substitute Mortgage Loan, of the ~~Stated Principal Balance~~ principal balance thereof as of the date of substitution, together with one month's interest on such ~~Stated Principal Balance~~ principal balance at the applicable Net Mortgage Interest Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as ~~applicable~~the case may be, will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and ~~written~~ notice by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as ~~applicable~~the case may be, shall deliver to it and as shall be necessary to vest therein any ~~Deleted~~ Defective Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(l) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(l) of the Code, or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (cd) Upon discovery by ~~the Depositor, the NIMS Insurer,~~ the Originator, the Seller, the ~~Servicer~~ Master Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Seller, as applicable, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(c), substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. ~~Such repurchase or substitution shall~~ In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause it to be ~~made by (i)~~ a "defective obligation" within the meaning of Treasury Regulations relating to REMICs, the Originator or the Seller, as the case may be, if shall cure the ~~affected Mortgage Loan's status as a non-qualified mortgage is~~ defect or ~~results from a breach~~ make the required purchase or substitution no later than 90 days after the discovery of ~~any representation, warranty or covenant made by~~ the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to ~~the Depositor,~~ the Originator or the Seller, as ~~the case may be~~applicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Asset Backed Funding Corp. ABFC Asset Backed Certificates Series 2004-Opt3)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. ~~(a)~~ Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement ~~(including any representation, warranty or covenant regarding the Prepayment Charge Schedule)~~ in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the Originator, the ~~NIMS Insurer, the~~ Seller and the Master Servicer of such defect, missing document or breach and request that the Originator or the Seller, as ~~applicable~~the case may be, deliver such missing document or cure such defect or breach within 90 60 days from the date the Originator or the Seller, as ~~applicable~~the case may be, was notified of such missing document, defect or breach, and if the Originator or the Seller, as ~~applicable~~the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Trustee~~ Master Servicer, to the extent it is not the Originator, the Seller or an Affiliate of the Seller, and otherwise the Trustee, in accordance with Section 3.02(b), shall enforce the obligations of the Originator or the Seller, as ~~applicable~~the case may be, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as ~~applicable~~the case may be, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as ~~applicable~~the case may be, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be ~~remitted to the Servicer for deposit~~ deposited in the Collection Account and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Master Servicer of such deposit, shall release to the Originator or the Seller, as ~~applicable~~the case may be, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as ~~applicable~~the case may be, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as ~~applicable~~the case may be, any Mortgage Loan released pursuant hereto. ~~In furtherance of the foregoing, if the Originator or the Seller, as applicable, is~~ The Trustee shall not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as ~~applicable~~the case may be, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as ~~applicable~~the case may be, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Depositor, the NIMS Insurer and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the Depositor, the NIMS Insurer and the Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the Custodian, the Servicer and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and written notice by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties hereto and the Trustee shall give written notice to the Originator and the Seller. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the Depositor, the Originator or the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon BRS MRT Sec Vii Inc New Cent Hm Eq L Tr Ser 2001-Nc1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon ~~discovery or~~ receipt of written notice from the Custodian of any materially defective document in, or that a document is missing from, a Mortgage File or from Depositor, the Servicer, the Master Servicer, the Trust Administrator or the Custodian of the breach by the Originator or the Seller of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Assignment Agreement or the Originator Master Agreement (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the ~~Originator~~Trust Administrator, the Seller, the NIMS Insurer, the ~~Seller~~ Originator, the Servicer and the Master Servicer of such defect, missing document or breach and request that the Originator or the Seller, as applicable, deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Trustee receives written notice from the Depositor, the Servicer, the Master Servicer, the Trust Administrator or the Custodian that the Originator or the Seller, as applicable, ~~does~~ has not ~~deliver~~ delivered such missing document or ~~cure~~ cured such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of the Originator or the Seller, as applicable, under the ~~Mortgage Loan Purchase~~ Assignment Agreement and/or Originator Master Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase AgreementPrice. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection Account and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release to the Originator or ~~the~~ Seller, as applicable, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or ~~the~~ Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or ~~the~~ Seller, as applicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the Originator or ~~the~~ Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS(R)~~ MERS® System, the Originator or ~~the~~ Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or ~~the~~ Seller, as applicable, and shall cause such Mortgage to be removed from registration on the ~~MERS(R)~~ MERS® System in accordance with MERS' ’ rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided ~~above~~above and in the case of the Originator, if so provided in the ~~Mortgage Loan Purchase~~ Originator Master Agreement, the Originator or ~~the~~ Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator or ~~the~~ Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or ~~the~~ Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or ~~the~~ Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or ~~the~~ Seller, as applicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to the Trustee (or the Custodian on behalf of the Trustee), and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Depositor, the NIMS Insurer and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the Depositor, the NIMS Insurer and the Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or ~~the~~ Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or ~~the~~ Seller, as applicable, ,shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Master Servicer, the Trust Administrator, the Trustee, the Custodian, the Servicer and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the ~~Mortgage Loan Purchase~~ Assignment Agreement, including, all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase~~ Originator Master Agreement. For any month in which the Originator or ~~the~~ Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "“Substitution Adjustment Amount"”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, the Originator or ~~the~~ Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and written notice by the Servicer of such deposit, shall release to the Originator or ~~the~~ Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the Originator or ~~the~~ Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or ~~the~~ Seller, as applicable, shall obtain at its own expense and deliver to the ~~Trustee~~ Trustee, the Trust Administrator and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section 860F(a)(1) of the Code or on "“contributions after the startup date" ” under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the NIMS Insurer, the ~~Originator, the~~ Seller, the Servicer, the Master Servicer or the ~~Trustee~~ Trust Administrator that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties hereto and the Trustee shall give written notice to the Originator ~~and the~~ or Seller, as applicable. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or ~~the~~ Seller, as ~~the case may be~~applicable, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or ~~the~~ Seller, as ~~the case may be~~applicable, under the ~~Mortgage Loan Purchase~~ Assignment Agreement or the Originator Master Agreement, or (ii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to the Depositor, the Originator or the ~~Seller, as the case may be,~~ Seller the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty. SECTION 2.04. Reserved.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2006-Nc2)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the Originator, the NIMS Insurer, the Seller and the Servicer of such defect, missing document or breach and request that the Originator or the Seller, as applicable, deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of the Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection Account and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Depositor, the NIMS Insurer and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the Depositor, the NIMS Insurer and the Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the ~~Custodian, the Servicer~~ Custodian and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the ~~Stated~~ Principal Balance thereof as of the date of substitution, together with one month's interest on such ~~Stated~~ Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the Depositor, the Originator or the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Asset Sec Trans Inc Mort Pas THR Cert Ser 2003 WMC)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the Originator, the NIMS Insurer, the Seller and the Master Servicer of such defect, missing document or breach and request that the Originator or the Seller, as applicable, deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Trustee~~ Master Servicer, to the extent it is not the Originator, the Seller or an Affiliate of the Seller, and otherwise the Trustee, in accordance with Section 3.02(b), shall enforce the obligations of the Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Master Servicer for deposit in the Collection Account and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant hereto. ~~In furtherance of the foregoing, if the Originator or the Seller, as applicable, is~~ The Trustee shall not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator ~~or the Seller, as applicable,~~ may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee (or the Custodian on behalf of the~~ Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Depositor, the NIMS Insurer and the Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the Depositor, the NIMS Insurer and the Master Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee, the Custodian, the Servicer~~ Trustee and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (the "“Substitution Adjustment Amount"”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the ~~Stated~~ Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such ~~Stated~~ Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section 860F(a)(1) of the Code or on "“contributions after the startup date" ” under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, the Master Servicer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or the Seller, as the case may be, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall ~~reconvey~~ re-convey to the Depositor, the Originator or the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2005-Opt1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the Originator, the NIMS Insurer, the Seller and the Master Servicer of such defect, missing document or breach and request that the Originator or the Seller, as applicable, deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Trustee~~ Master Servicer, to the extent it is not the Originator, the Seller or an Affiliate of the Seller, and otherwise the Trustee, in accordance with Section 3.02(b), shall enforce the obligations of the Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Master Servicer for deposit in the Collection Account and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant hereto. ~~In furtherance of the foregoing, if the Originator or the Seller, as applicable, is~~ The Trustee shall not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee nor the Custodian shall have any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(b); provided, however, the Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Certificateholders. (b) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee (or the Custodian on behalf of the~~ Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Depositor, the NIMS Insurer and the Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the Depositor, the NIMS Insurer and the Master Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of REMIC I and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee, the Custodian, the Servicer~~ Trustee and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the ~~Stated~~ Principal Balance thereof as of the date of substitution, together with one month's interest on such ~~Stated~~ Principal Balance at the applicable Net Mortgage Rate, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any Trust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. (c) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, the Master Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties hereto and the Trustee shall give written notice to the Originator and the Seller. In connection therewith, the Originator, the Seller or the Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) the Originator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the Depositor, the Originator or the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.qualified

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Asset Sec Trans Mastr Pass Thru Ser 2003-Opt2)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice from the Trustee of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the ~~Seller~~ Seller, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement ~~(including any representation~~or the Assignment Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall ~~promptly notify~~ request that the ~~Originator, the NIMS Insurer, the Seller and the Servicer of~~ Originator deliver such ~~defect,~~ missing document or ~~breach and request~~ that the Originator or the ~~Seller, as applicable, deliver such missing document or~~ Seller cure such defect or breach within 90 days from the date the Originator or the ~~Seller, as applicable,~~ Seller was notified of such missing document, defect or breach, and if the Originator or the ~~Seller, as applicable,~~ Seller does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce (in the ~~obligations of~~ manner set forth in Section 2.01) the Originator’s obligation under the Master Agreement or the Assignment Agreement or the Seller’s obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ of its obligation to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within~~ on or prior to the Determination Date following the expiration of such 90 ~~days after the date on which the Originator or the Seller, as applicable, was notified~~ day period (subject to Section ~~2.03(c~~2.03(e)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Servicer of such deposit, shall release (or cause the Custodian to release) to the Originator or the Seller, as applicable, the related Mortgage File and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or ~~the~~ Seller, as applicable, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage ~~File~~File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above~~, if so provided in the Mortgage Loan Purchase Agreement~~, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(d); provided, however, the ~~Originator or the Seller, as applicable,~~ Seller may not substitute ~~a Qualified Substitute~~ for any Mortgage Loan ~~for any Deleted Mortgage Loan that violates any~~ which breaches a representation or warranty regarding abusive or predatory ~~or abusive~~ lending ~~law~~laws. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. In order to facilitate the discovery of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator of any representation, warranty or covenant under the Master Agreement in respect of any Mortgage Loan which materially adversely affects the value of that Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall have the right to request from the Originator, on behalf of the Trust Fund, a copy of the Mortgage File (including any documents related thereto, such as payment histories, collection screens and payoff amounts) from the Originator, or if any portion or copy of such Mortgage File is being held by the Servicer or the Custodian, from the Servicer or the Custodian, as applicable and the ~~Certificateholders~~Originator, the Servicer or the Custodian, as applicable, are hereby authorized to deliver such file to the Depositor. (b) Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects. (c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of any representation, warranty or covenant of the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage,~~ Mortgage and the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment ~~Amount~~ (as described below), if any, in connection with such substitution. The Trustee shall acknowledge (or cause the Custodian ~~on behalf of the Trustee~~to acknowledge) ~~shall acknowledge~~ receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~ten Business Days~~ 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor,~~ Depositor and the Servicer (with a copy to the NIMS ~~Insurer and the Servicer~~Insurer), with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee shall deliver (or cause the Custodian ~~on behalf of the Trustee~~to deliver) ~~shall deliver~~ to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer (with a copy to the NIMS Insurer) a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such Deleted Mortgage Loan ~~on or before~~ in the Due ~~Date in~~ Period preceding the month of ~~substitution,~~ substitution and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the ~~Certificateholders~~ Trustee and the NIMS ~~Insurer~~ Insurer, who shall forward such notice to the Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the ~~Trustee,~~ Trustee and the ~~Custodian, the Servicer~~ Custodian and the NIMS Insurer. Upon such ~~substitution~~substitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the ~~Mortgage Loan Purchase~~ Assignment Agreement, ~~including,~~ including all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase Agreement~~Assignment Agreement as of the date of substitution. For any month in which the Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "“Substitution ~~Adjustment Amount"~~Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable ~~Net~~ Mortgage Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution ~~Adjustment Amount~~Adjustment, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer of such deposit, shall release (or cause the Custodian to release) to the Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, pursuant to the terms of the Assignment Agreement, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section ~~860F(a)(1~~860F(a)(I) of the Code or on "“contributions after the startup date" ” under Section ~~860G(d)(1~~860G(d)(I) of the ~~Code,~~ Code or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (ce) Upon discovery by the Depositor, the ~~NIMS Insurer~~Servicer, the ~~Originator, the Seller, the Servicer~~ NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties ~~hereto and the Trustee shall give written notice to the Originator and the Seller~~hereto. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) by the Originator ~~or the Seller, as the case may be,~~ if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator ~~or the Seller, as the case may be,~~ under the ~~Mortgage Loan Purchase Agreement,~~ Master Agreement or (ii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.06, or if its status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the ~~Depositor, the Originator~~ Depositor or the ~~Seller~~Originator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty. (f) Upon discovery or receipt of written notice of a breach by the Seller of any representation, warranty or covenant made by the Seller under the Assignment Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, and if either (i) such Mortgage Loan is not in breach of any representation, warranty or covenant of the Originator or (ii) the Originator has failed to remedy such representation, warranty or covenant with respect to such Mortgage Loan, then the Trustee shall enforce the obligation of the Seller to remedy such breach, to the extent provided in the Assignment Agreement, in the manner and within the time periods set forth in the Assignment Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt1)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any ~~representation,~~ representation or warranty under the Originator Mortgage Loan Purchase Agreement or ~~covenant under~~ the Mortgage Loan Purchase ~~Agreement (including any representation~~Agreement, ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ as applicable, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage ~~Loan~~ Loan, Prepayment Charge or the interest therein of the Certificateholders, the Trustee shall promptly notify the ~~Originator~~Originator or the Seller, as the ~~NIMS Insurer~~case may be, ~~the Seller~~ and the Master Servicer of such defect, missing document or breach and request ~~that~~ that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, ~~deliver such missing document or~~ cure such ~~defect or~~ breach within 90 days from the date the Originator or the Seller, as ~~applicable~~the case may be, was notified of such breach. If the Seller does not deliver such missing ~~document,~~ document or cure such defect or ~~breach, and~~ if the Originator or the Seller, as applicable, does not ~~deliver such missing document or~~ cure such ~~defect or~~ breach in all material respects during such period, the Trustee shall enforce the ~~obligations of~~ Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within 90 days after~~ on or prior to the ~~date on which~~ Determination Date following the ~~Originator or the Seller, as applicable, was notified~~ expiration of such period (subject to Section ~~2.03(c~~2.03(d)~~) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement~~). The Purchase Price for the repurchased Mortgage Loan shall be ~~remitted to the Servicer for deposit~~ deposited in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written ~~certification~~ notice from the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as ~~applicable~~the case may be, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, ~~if so provided in the Mortgage Loan Purchase Agreement,~~ the Originator or the Seller, as ~~applicable~~the case may be, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a ~~Deleted~~ Defective Mortgage Loan) and substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(c)~~; provided~~. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, ~~however~~as applicable, or as to which the Originator or the Seller, as ~~applicable~~the case may be, ~~may not substitute~~ has no knowledge, if it is discovered by the Depositor, the Master Servicer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a ~~Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory~~ breach of the applicable representation or ~~abusive lending law~~warranty. It is understood and agreed that the ~~obligation~~ representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the Mortgage Files to the Trustee and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the ~~Seller~~Mortgage Loan Purchase Agreement, as applicable, and to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole ~~remedy respecting such omission, defect or breach~~ remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the representations and warranties contained in the ~~Certificateholders~~Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws and "high cost" loans in Sections 3.01(k) and (l) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.03(i) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Master Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount. (b) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of any representation, warranty or covenant of the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Master Servicer shall cure such breach in all material respects. (c) Any substitution of ~~Qualified~~ Eligible Substitute Mortgage Loans for ~~Deleted~~ Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any ~~Deleted~~ Defective Mortgage Loan for which the Originator or the ~~Seller, as applicable,~~ Seller substitutes ~~a Qualified~~ an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the Trustee ~~(or the Custodian on behalf of the Trustee),~~ for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such ~~Qualified~~ Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor, the NIMS Insurer and the~~ Master Servicer, with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor, the NIMS Insurer and the~~ Master Servicer a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to ~~Qualified~~ Eligible Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such ~~Deleted~~ Defective Mortgage Loan ~~on or before the Due Date~~ in the ~~month~~ Collection Period or Prepayment Period, as applicable, preceding the date of ~~substitution~~substitution and the Depositor, ~~and~~ the Originator or the Seller, as ~~applicable~~the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such ~~Deleted~~ Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders ~~and the NIMS Insurer~~ that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such ~~Deleted~~ Defective Mortgage Loan from the terms of this Agreement and the substitution of the ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee~~, the Custodian, the Servicer and the NIMS Insurer~~. Upon such substitution, such ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement ~~and~~ and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by the Originator or the Seller, all applicable representations and warranties thereof included in the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, as of the date of substitution. For any month in which the Originator or the ~~Seller, as applicable,~~ Seller substitutes one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for one or more ~~Deleted~~ Defective Mortgage Loans, the Master Servicer will determine the amount (the "Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price of all such ~~Deleted~~ Defective Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such ~~Qualified~~ Eligible Substitute Mortgage Loan, of the ~~Stated Principal Balance~~ principal balance thereof as of the date of substitution, together with one month's interest on such ~~Stated Principal Balance~~ principal balance at the applicable Net Mortgage Interest Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as ~~applicable~~the case may be, will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment Amount, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related ~~Qualified~~ Eligible Substitute Mortgage Loan or Loans and ~~written~~ notice by the Master Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as ~~applicable~~the case may be, shall deliver to it and as shall be necessary to vest therein any ~~Deleted~~ Defective Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee ~~and the NIMS Insurer~~ an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(l) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(l) of the Code, or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (cd) Upon discovery by ~~the Depositor, the NIMS Insurer,~~ the Originator, the Seller, the Master Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other ~~parties hereto and the Trustee shall give written notice to the Originator and the Seller~~parties. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Seller, as applicable, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(c), substitute one or more ~~Qualified~~ Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. ~~Such repurchase or substitution shall~~ In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause it to be ~~made by (i)~~ a "defective obligation" within the meaning of Treasury Regulations relating to REMICs, the Originator or the Seller, as the case may be, if shall cure the ~~affected Mortgage Loan's status as a non-qualified mortgage is~~ defect or ~~results from a breach~~ make the required purchase or substitution no later than 90 days after the discovery of ~~any representation, warranty or covenant made by~~ the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of no representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to ~~the Depositor,~~ the Originator or the Seller, as ~~the case may be~~applicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt2)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement ~~(including any representation, warranty or covenant regarding the Prepayment Charge Schedule)~~ in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall ~~promptly notify the Originator, the NIMS Insurer, the Seller and the Servicer of such defect, missing document or breach and~~ request that the Originator or the Seller, as applicable, deliver such missing document or that the Originator or the Seller, as applicable, cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the Originator or the Seller, as applicable, does not deliver such missing document or if the Originator or the Seller, as applicable, does not cure such defect or breach in all material respects during such period, the Trustee shall enforce the Originator's obligation under the Mortgage Loan Purchase Agreement and cause the Originator to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the Determination Date following the expiration of such 90 day period (subject to Section 2.03(e)). If the Originator or the Seller, as applicable fails to repurchase or substitute for such Mortgage Loan in accordance with its obligations of under the Mortgage Loan Purchase Agreement, the Trustee and the Depositor shall consult on further actions to be taken against the Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date on which the Originator or the Seller, as applicable, was notified (subject to Section 2.03(c)) of such missing document, defect or breach, if and to the extent that the Originator or the Seller, as applicable, is obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as applicable, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage ~~File~~File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above~~, if so provided in the Mortgage Loan Purchase Agreement~~, the Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(d); provided, however, neither the Originator or nor the Seller, as applicable, may ~~not~~ substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the Originator or the Seller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee ~~and~~ on behalf of the Certificateholders. (b) Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects. (c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of any representation, warranty or covenant of the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any Deleted Mortgage Loan for which the Originator or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller, as applicable, delivering to the ~~Trustee (or the Custodian on behalf of the~~ Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage,~~ Mortgage and the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment ~~Amount~~ (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~ten Business Days~~ 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the Servicer a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such Deleted Mortgage Loan ~~on or before~~ in the Due ~~Date in~~ Period preceding the month of ~~substitution,~~ substitution and the Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Servicer shall give or cause to be given written notice to the ~~Certificateholders and~~ Trustee, who shall forward such notice to the ~~NIMS Insurer~~ Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee~~, the Custodian, the Servicer and the NIMS Insurer~~. Upon such ~~substitution~~substitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, ~~including,~~ including all applicable representations and warranties thereof included in the Mortgage Loan Purchase ~~Agreement~~Agreement as of the date of substitution. For any month in which the Originator ~~or the Seller, as applicable,~~ substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the "Substitution ~~Adjustment Amount~~Adjustment"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable ~~Net~~ Mortgage Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Originator or the Seller, as applicable, will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution ~~Adjustment Amount~~Adjustment, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee ~~and the NIMS Insurer~~ an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(I) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(I) of the ~~Code,~~ Code or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (ce) Upon discovery by the Depositor~~, the NIMS Insurer, the Originator, the Seller~~, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties ~~hereto and the Trustee shall give written notice to the Originator and the Seller~~hereto. In connection therewith, the ~~Originator, the Seller~~ Originator or the ~~Depositor~~ Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) by the Originator ~~or the Seller, as the case may be,~~ if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator ~~or the Seller, as the case may be,~~ under the Mortgage Loan Purchase ~~Agreement,~~ Agreement or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.06, or if its status as a non- qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to the ~~Depositor, the Originator~~ Depositor or the ~~Seller~~Originator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Meritage Mortgage Loan Trust 2004-2)

Repurchase or Substitution of Mortgage Loans by the Originator or the Seller. (a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the ~~Originator~~ Originators or the Seller of any representation, warranty or covenant under the ~~Mortgage Loan Purchase Agreement~~ Master Agreements or under the Assignment Agreements (~~including any representation~~notwithstanding the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation and warranty was made), ~~warranty or covenant regarding the Prepayment Charge Schedule)~~ respectively, in respect of any Mortgage Loan ~~that~~ which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall ~~promptly notify the Originator, the NIMS Insurer, the Seller and the Servicer of such defect, missing document or breach and~~ request that the related Originator ~~or the Seller, as applicable,~~ deliver such missing document or cure such defect or that the related Originator or the Seller, as applicable, cure such breach within 90 days from the date the related Originator or the Seller, as applicable, was notified of such missing document, defect or breach, and if the related Originator ~~or the Seller, as applicable,~~ does not deliver such missing document or cure such defect or if the related Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce the ~~obligations of~~ related Originator's obligation under the Master Agreement or the Seller's obligation under the Assignment Agreements, as applicable, and cause the related Originator or the Seller, as applicable, ~~under the Mortgage Loan Purchase Agreement~~ to repurchase such Mortgage Loan from ~~REMIC I~~ the Trust Fund at the Purchase Price ~~within~~ on or prior to the Determination Date following the expiration of such 90 ~~days after~~ day period (subject to Section 2.03(e)). If the ~~date on which the~~ related Originator or the Seller, as applicable, ~~was notified (subject~~ fails to ~~Section 2.03(c)) of~~ repurchase or substitute for such ~~missing document~~Mortgage Loan in accordance with its obligations under the related Master Agreement or the Assignment Agreement, ~~defect or breach~~as applicable, if the Trustee and the Depositor shall consult on further actions to be taken against the ~~extent that the~~ related Originator or the Seller, as applicable. Notwithstanding the foregoing, ~~is obligated~~ to ~~do so~~ the extent of a breach by the related Originator and the Seller of any representation, warranty or covenant under the Assignment Agreement in respect of any Mortgage Loan ~~Purchase Agreement~~which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall first request that such Originator cure such breach or repurchase such Mortgage Loan and if such Originator fails to cure such breach or repurchase such Mortgage Loan within 60 days of receipt of such request from the Trustee, the Trustee shall then request that the Seller cure such breach or repurchase such Mortgage Loan. The Purchase Price for the repurchased Mortgage Loan shall be remitted to the related Servicer for deposit in the related Collection ~~Account~~ Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the related Servicer of such deposit, shall release to the related Originator or the Seller, as applicable, the related Mortgage File and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in the related Originator or the Seller, as applicable, any Mortgage Loan released pursuant ~~hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS~~ hereto and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee ~~nor the Custodian~~ shall have ~~any~~ no further responsibility with regard to such Mortgage ~~File~~File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, ~~if so provided in~~ the ~~Mortgage Loan Purchase Agreement, the~~ related Originator or the Seller, as applicable, may cause such Mortgage Loan to be removed from ~~REMIC I~~ the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section ~~2.03(b~~2.03(d); provided, however, neither the ~~Originator or~~ Originators nor the Seller, as applicable, may ~~not~~ substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan ~~that violates any~~ which breaches a representation or warranty regarding abusive or predatory ~~or abusive~~ lending ~~law~~laws. It is understood and agreed that the obligation of the ~~Originator or~~ Originators and the ~~Seller, as applicable,~~ Seller to cure or to repurchase (or to substitute for) any Mortgage Loan as to ~~which~~ which, in the case of the Originators only, a document is ~~missing,~~ missing or a material defect in a constituent document exists or or, in the case of the Originators and the Seller, as to which such a breach has occurred and is ~~continuing~~ continuing, shall constitute the sole remedy against the Originators and the Seller respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. In addition to the foregoing, within 90 days of the earlier of discovery by the Seller or receipt of notice by the Seller of (i) the breach of any representation or warranty of Residential Mortgage Assistance Enterprise, LLC set forth in Section 7.02 of the ResMae Master Agreement which materially and adversely affects the interests of the Certificateholders in any ResMae Mortgage Loan and for which Residential Mortgage Assistance Enterprise, LLC has failed to cure such breach in accordance with the terms of the ResMae Master Agreement and (ii)(a) the fact that Residential Mortgage Assistance Enterprise, LLC is no longer an operating company or (b) an Officers' Certificate certifying to the fact that Residential Mortgage Assistance Enterprise, LLC is financially unable to cure such breach pursuant to the terms of the ResMae Master Agreement, the Seller shall take such action described in Section 2.03 in respect of such ResMae Mortgage Loan. Such obligation of the Seller shall continue until such time that the Rating Agencies inform the Depositor and the ~~Certificateholders~~Seller in writing that such obligation is no longer required in order for the Rating Agencies to maintain their then-current ratings on the Certificates. (b) Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects. (c) Within 90 days of the earlier of discovery by either Servicer or receipt of notice by either Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the ~~date which~~ last Business Day that is within two years after the ~~Startup Day for REMIC I.~~ Closing Date. As to any Deleted Mortgage Loan for which the ~~Originator~~ Originators or the Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the ~~Originator~~ Originators or the Seller, as applicable, delivering to the ~~Trustee (or the Custodian on behalf of the~~ Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage,~~ Mortgage and the Assignment ~~in blank or~~ to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment ~~Amount~~ (as described below), if any, in connection with such substitution. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~ten Business Days~~ 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~C-1~~F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall deliver to the ~~Depositor, the NIMS Insurer~~ Depositor and the related Servicer a certification substantially in the form of Exhibit ~~C-2~~ F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of ~~REMIC I~~ the Trust Fund and will be retained by the ~~Originator~~ Originators or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~Monthly Payment due on~~ collections and recoveries in respect of such Deleted Mortgage Loan ~~on or before~~ in the Due ~~Date in~~ Period preceding the month of ~~substitution,~~ substitution and the related Originator or the Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ related Servicer shall give or cause to be given written notice to the ~~Certificateholders and~~ Trustee, who shall forward such notice to the ~~NIMS Insurer~~ Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee~~, the Custodian, the Servicer and the NIMS Insurer~~. Upon such ~~substitution~~substitution by the Originators or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the ~~Mortgage Loan Purchase~~ related Assignment Agreement, ~~including,~~ including all applicable representations and warranties thereof ~~included in~~ as of the ~~Mortgage Loan Purchase Agreement~~date of substitution. For any month in which ~~the~~ either Originator or the Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution ~~Adjustment Amount~~Adjustment"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate of~~aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable ~~Net~~ Mortgage Rate~~, plus all outstanding Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto~~. On the date of such substitution, the Trustee shall enforce the related Originator's obligation under the Master Agreement or the Seller's obligation under the Assignment Agreements, as applicable, and cause the related Originator or the Seller, as applicable, ~~will~~ to deliver or cause to be delivered to the related Servicer for deposit in ~~the~~ its Collection Account an amount equal to the Substitution ~~Adjustment Amount~~Adjustment, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~written notice~~ certification by the related Servicer of such deposit, shall release to the related Originator or the Seller, as applicable, the related Mortgage File or Files and ~~the Trustee (or the Custodian on behalf of the Trustee)~~ shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator or the Seller, as applicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator or the Seller, as applicable, shall obtain at its own expense and deliver to the Trustee ~~and the NIMS Insurer~~ an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~any~~ the Trust ~~REMIC~~Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section ~~860F(a)(1~~860F(a)(I) of the Code or on "contributions after the startup date" under Section ~~860G(d)(1~~860G(d)(I) of the ~~Code,~~ Code or (b) any ~~Trust~~ REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (ce) Upon discovery by the Depositor, ~~the NIMS Insurer, the Originator, the Seller, the~~ either Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties ~~hereto and the Trustee shall give written notice to the Originator and the Seller~~hereto. In connection therewith, the ~~Originator, the~~ Seller or the ~~Depositor~~ Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section ~~2.03(b~~2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Such repurchase or substitution shall be made by (i) by the related Originator ~~or the Seller, as the case may be,~~ if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by ~~the~~ such Originator ~~or the Seller, as the case may be,~~ under the ~~Mortgage Loan Purchase Agreement,~~ related Master Agreement or (ii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.06, or if its status as a non-qualified mortgage is a breach of no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by an Originator, or Section 2.03(b), if made by the Depositor. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to the ~~Depositor, the Originator~~ Depositor or the ~~Seller~~related Originator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2004-1)

Common use of Repurchase or Substitution of Mortgage Loans by the Originator or the Seller Clause in Contracts